32 F. 241 | U.S. Circuit Court for the District of Northern California | 1887
Lead Opinion
after filing the above statement of facts, delivered the opinion of the court, as follows:
The motion for a peremptory order upon the witness to answer the interrogatories propounded by the railway commission has been fully argued; and every thing which could be said in its favor has been ably presented by the United States attorney, either in oral or printed arguments. In resisting the motion, counsel of the respondent have not confined themselves to a discussion of the propriety and necessity of the interrogatories, and the sufficiency of the answers given by him; but they have assailed the validity of the act creating the commission, so far as it authorizes an examination into the private affairs of the directors, officers, and employes of the Central Pacific Railroad Company, and confers the right to invoke the power of the federal courts in aid of the general investigation directed. Impressed with the gravity of the questions presented, we have given to them all the consideration in our power.
The Pacific Railway Commission, created under the act of congress of March 3, 1887, is not a judicial body; it possesses no judicial powers; it can determine no rights of the government, or of the companies whose affairs it investigates. Those rights will remain the subject oT judicial inquiry and determination as fully as though the commission had never been created; and in such inquiry its report to the president of its action will not ho even admissible as evidence of any of the matters investigated. It is a mere board of inquiry, directed to obtain information upon certain matters, and report the result of its investigations to the president, who is to lay the same before congress. In the progress of its
The investigation directed is to be distinguished from the inquiries authorized upon taking the census. The constitution provides for an enumeration of the inhabitants of the states at regular periods, in order to furnish a basis for the apportionment of representatives, and, in connection with the ascertainment of the number of inhabitants, the act of congress provides for certain inquiries as to their age, birth, marriage, occupation/, and respecting some other matters of general interest', and for a refusal of ánv one to answer them a small penalty is imposed. Rev. St. § 2171. There is no attempt in such inquiries to pry into the private affairs and papers of any one, nor are the courts called upon to enforce answers to them. Similar inquiries usually accompany the taking of a census of every country, and are not deemed to encroach upon the rights of the citizen. And in addition to the' inquiries usually ac?. companying the taking of a census, there is no,doubt that congress may authorize a commission to obtain information upon any subject which, in its judgment, it may be important to possess. It may inquire into the extent of the productions of the country of every kind, natural and artificial, and seek information as to the habits, business, and even amusements of the people. But in its inquiries it is controlled by the same guards against the invasion of private rights which limit the Investigations of private parties into similar matters. In the pursuit of knowledge it cannot compel the production of the pi-ivate books and papers of the citizen for its inspection, except in the progress of judicial proceedings, or in suits instituted for that purpose, and in both cases only upon averments that its rights are in some way dependent for enforcement upon the evidence those books and papers contain.
Of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all other rights would lose half their value. The law provides for the compulsory production, in the progress of judicial proceedings, or by direct suit for that purpose, of such documents as affect the interest of others, and also, in certain cases, for the seizure of criminating papers necessary for the prosecution of offenders against public justice, and only in one of these ways can they be obtained, and their contents made known, against the will of the owners.
In the recent case of Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. Rep. 524, the supreme court held that a provision of a law of congress, which
“Any compulsory discovery by extorting the party’s oath, or compelling the production of his private books and papers, to convict him of crime or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purpose of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom.”
The language thus used had reference, it is true, to the compulsory production of papers as a foundation for criminal proceedings, but it is applicable to any such production of the private books and papers of a party otherwise than in the course of judicial proceedings, or a direct suit for that purpose. It is the forcible intrusion into, and compulsory exposure of, one’s private affairs and papers, without judicial process, or in the course of judicial proceedings, which is contrary to the principles of a free government, and is abhorrent to the instincts of Englishmen and Americans.
In his opinion in the celebrated case of Entick v. Carrington, reported at length in 19 How. State Tr. 1029, Lord Camden said;
“Papers are the owner’s goods and chattels; they are his dearest property, and are so far from enduring a seizure that they will hardly b.ear an inspection; and though the eye cannot, by the laws of England, be guilty of a trespass, yot, where papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect. Where is the written law that gives any magistrate such a power? I can safely answer there is none; and therefore it is too much for us, without such authority, to pronounce a practice legal which would be subversive of all the comforts of society.”
Cpmpulsory process to produce such papers, not in a judicial proceeding, but before a commissioner of inquiry, is as subversive of “all the comforts of-society” as their seizure under the general warrant condemned in that case. The principles laid down in the opinion of Lord Camden, said the supremo court of the United States, “affect the very essence of constitutional liberty and security. They reach further than the concrete form of the case then before the court with its adventitious circumstances; they apply to all invasions on the part of the government, and its employes, of the sanctity of man’s home and the privacies of life.”
In Kilbourn v. Thompson, 103 U. S. 168, we have a decision of the supreme court of the United Slates that neither house of congress has the power to make inquiries into the private affairs of the citizen; that is, to compel exposure of such affairs. That case was this: The firm of Jay Cooke & Co. were debtors of the United States, and it was alleged that they were interested in a “real-estate pool” in the city of Washington, and that the trustee of their estate and effects had made a settlement of their interests with the associates of the firm to the disadvan
“The house of representatives,” said the court, “has the sole right to impeach officers of the government, and the senate to try them. Were the question of such impeachment before either body acting in its appropriate sphere on that subject, we see no reason to doubt the right to
When the case wont back to the supreme court of the District of Columbia, and was tried, the plaintiff recovered a verdict for $60,000 against the sergeant-at-arms. A now trial having been granted for excessive damages, the plaintiff recovered on the second trial a verdict for $37,-500. This amount was subsequently reduced to §20,000, which was paid by order of congress, with interest and costs of suit. 23 St. at Large, 467: IMacArthur & Mackey, 416, 432.
This ease will stand for all time as a bulwark against the invasion of the right of the citizen to prelection in his private affairs against the unlimited scrutiny of investigation by a congressional committee. The courts are open to the United Stales as they are to the private citizen, and both can there secure, by regular proceedings, ample protection of all rights and interests which arc entitled to protection under a government of a written constitution and laws.
The act of congress not only authorizes a searching investigation into the methods, affairs, and business of the Central Pacific Railroad Company, but it makes it the duty of the railway commission to inquire into, ascertain, and report whether any of the directors, officers, or employes of that company have been, or are now, directly or indirectly, interested, and to wliat extent, in any railroad, steam-ship, telegraph, express, mining, construction, or other business company or corporation, and with which any
With reference to the vouchers respecting which the principal interrogatories are propounded, and to which we are asked to compel answers from the witness, it is conceded by the commission on this motion that the moneys covered by them were not charged against the United States in ascertaining the net earnings of the company. If such were the case, it is difficult to see what interest the United States can have in the disposition of those moneys. Be that as it may, the federal courts cannot, upon that concession, aid the commission in ascertaining Iioav the moneys Avere expended. Those courts cannot become the instruments of the commission in furthering its investigation. Their power, its nature and extént, is defined by the constitution. The government established by that instrument is one of delegated powers, supreme in its prescribed sphere, but without authority beyond it. No department of it can exercise any powers not specifically enumerated or necessarily implied in those enumerated. Such is the teaching of all of our great jurists, and the tenth amendment declares that “the poAvers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Any legislation of congress beyond the limits of the powers delegated is an invasion of the rights reserved to the states or to the people, and is necessarily void. The first section of the third article of the constitution declares that “the judicial power of the United States shall be vested in one supreme court, and such inferior courts as congress may, from time to time, ordain and establish.” The second section of the same article declares that “the ju
This section was modified by the eleventh amendment, declaring that “the judicial power shall not he construed to extend to any suit, in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.” As thus modified, the section states all the cases and controversies in which the judicial power of the United States can be exercised, except those arising on a petition for a writ of habeas corpus, which is regarded as a suit for one’s personal freedom.
The judicial article of the constitution mentions cases and controversies. The term “controversies,” if distinguishable at all from “cases,” is so in that it is less comprehensive that the latter, and includes only suits of a civil nature. Chisholm v. Georgia, 2 Dall. 431, 432; 1 Tuck. Bl. Comm. App. 420, 421. By cases and controversies are intended the claims of litigants brought before the courts for determination by sucli regular proceedings as are established bylaw or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the constitution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whoso contentions are submitted to the court for adjudication.
“This clause enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting oil it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the constitution declares that the judicial power shall extend to all cases arising under the constitution, laws, and'treaties of the United States.”
In his Commentaries on the Constitution, Mr. Justice Story says:
“It is clear that the judicial department is authorized to exercise jurisdiction to the full extent of the constitution, laws, and treaties of the United States, whenever any question respecting them shall assume such a form that the judicial power is capable of acting upon it. When it has assumed such a form, it then becomes a case; and then, and not till then, the judicial power attaches to it. A case, then, in the sense of this clause of the constitution, arises when some subject touching the constitution, laws, or treaties of the United States is submitted to the courts by a party who asserts his rights in the form prescribed by law.”
And Mr. Justice Story refers in a note to the speech of Marshall on the case of Robbins, in the house of representatives, before he became chief justice, which contains a clear statement of the conditions upon which the judicial power of the United States can be exercised. His language was:
“By extending the judicial power to all cases in law and equity, the constitution has never been understood to confer on that department any political power whatever. To come within this description, a question must assume a legal form for forensic litigation and judicial decision. There must be parties to come into court, who can be reached by its process, and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit.”
The proceedings to obtain testimony upon letters rogatory to be used in the courts of foreign countries is not, as suggested by counsel, an exception to this doctrine. There are certain powers inherent in all courts. The power to preserve order in their proceedings, and to punish for contempt of their authority, are instances of this kind. And by jurists and text writers the power of the courts of record of one country, as a matter of comity, to furnish assistance, so far as is consistent with their own jurisdiction, to the courts of another country, by taking the testimony of witnesses to be used in the foreign country, or by ordering it to be taken before a magistrate or commissioner, has also been classed among their inherent powers. “For by the law of nations,” says Greenleaf, “courts of justieq of different countries are bound mutually to aid and assist each other, for the furtherance of justice; and hence, when the testimony of a foreign witness is necessary, the court before which the action is pending may send to the court within whose jurisdiction the witness resides a writ, either jjatent or close, usually termed a letter roga-tory, or a commission sub mutux mcissitudinis obtentuac in juris subsidium,
The act of congress creating the railway commission in terms provides, as already stated, that it may invoke the aid of any circuit or district court to require the attendance of witnesses) and the production of books, papers, and documents relating to the subject of inquiry; and empowers the court, in case of contumacy or refusal of persons to obey subpoenas to them, to issue orders requiring them to appear before the commissioners, or either of them, and produce the books and papers ordered, and give evidence touching the matters in question, and to punish disobedience to its orders; and does not appear to leave any discretion in the matter with the court. It would seem as though congress intended that the court should make the orders sought upon the mere request of the commissioners, without regard to the nature of the inquiry. It is difficult to believe that it could have intended that the court should thus bo the mere executor of the commissioners’ will. And yet, if the commissioners are not bound, as they have asserted, by any rules of evidence in their investigations, and may receive hearsay, ex parte statements, and information of every character that may be brought to their attention, and the court is to aid them in this manner of investigation, there can be no room for the exercise of judgment as to the propriety of the questions asked, and the court is left merely to direct that the pleasure of the commissioners in the line of their inquiries be carried out. But if
The provision of the act authorizing the courts to aid in the investigation in the manner indicated must therefore be adjudged void'. The federal courts, under the constitution, cannot be made the aids to any investigation by a commission or a committee into the affairs of any one. If rights are to be protected or wrongs redressed by any investigation, it must be conducted by regular proceedings in the courts of justice in cases authorized by the constitution.
The inability of the courts of the United States to exercise power in any other than regular judicial proceedings was decided in Hayburn’s Case as early as 1792. 2 Dall. 409. In March of that year, congress passed an act providing that invalid officers, soldiers, and seamen of the Revolution should be entitled to certain pensions proportionate to the extent of their disability, and devolved upon the circuit court of the United States of the district, where the invalids resided, the duty of examining the proofs presented of the nature and extent of the disability, and of determining what amount of their monthly pay would be equivalent to the disability ascertained, and to certify the same to the secretary of war, who was to place the names of the applicants returned on the pension list of the United States in conformity thereto, unless where he had cause to suspect imposition or mistake, in which case he was authorized to withhold the name of the applicant from the list, and report the same to congress at its next session. 1 St. at Large, 244, §§ 2, 4. Every circuit judge, except one who did not have the question before him, was of opinion that the law was unconstitutional and void. From a statement of Mr. Justice Curtis, in a note appended to the report of the case, it would seem that the judges were of opinion that the power devolved upon them by the act was not judicial in the sense of the constitution, and, if judicial, that their decisions could not be subject to the revision of the secretary of war, or of the congress of the United States. Plainly, the power exercised by them in determining the extent to which the invalids were entitled to the pensions provided upon the proof produced was in its nature judicial, for it required examination of evidence and judgment thereon; but it was not judicial in the sense of the constitution, under which judicial power can be exercised only in the cases enumerated in that instrument. The judges forwarded their conclusions to President Washington, and the act was subsequently repealed.
A suit being afterwards brought against one Yale Todd to recover back the amount of a pension paid to him, the question of the validity of the act came before the supreme court, and judgment was rendered in favor
The conclusion we have thus reached disposes of the petition of the railway commissioners, and renders it unnecessary to consider whether the interrogatories propounded were proper in themselves, or were sufficiently met by the answers given by Mr. Stanford, or whether any of them were open to objection for the assumptions they made, or the imputations they implied. It is enough that the federal courts cannot be made the instruments to aid the commissioners in their investigations. It also renders it unnecessary to make any comment upon the extraordinary position taken by them according to the statement of the respondent, to which we have referred, that they did not regard themselves bound in their examination by the ordinary rules of evidence, hut would receive hearsay and ex parte statements, surmises, and information of every character that might be called to their attention. It cannot be that the courts of the United States can bo used in furtherance of investigations in -which all rules of evidence may be thus disregarded.
The motion of the district attorney for a peremptory order upon the witness to answer the interrogatories as set forth in the petition of the railway commission is therefore denied, and the order to show cause is discharged.
Note by the Court. Nor is there anything- in the jurisdiction exercised by the LTniicd States courts over proceedings of grand juries, or in aid of their deliberations, or in aid of proceedings to perpetuate testimony, which militates against the viewtaken in the opinion. The judicial power of the courts of the United States extending to the ease's and controversies enumerated in the constitution, their jurisdiction necessarily covers all proceedings taken from the formal commencement of such oases and controversies to the execution of the judgments rendered therein. A certain class of offenders can only he prosecuted in the'federal courts through the indictment or presentment of a grand jury. Article 5 of Amendments. Over, therefore, the proceedings of such bodies those courts can exercise jurisdiction, and in aid of their deliberations can issue proems, and compel the attendance of witnesses, and require them to answer any proper questions propounded to them, and in ease of refusal may punish them as for a contempt.
Proceedings to perpetuate testimony, where litigation is expected or apprehended, are wit bin the ordinary jurisdiction of courts of equity, and come under the designation of cases in equity" in the constitution. The nature and requisites of a hill tiled for that purpose are fully described in Story, Eq. Pl. c. 7. It must state the subject in relation to which the plaintiff desires to preserve testimony, in what way he is interested in that subject, the names of the contemplated or apprehended litigants who are named as defendants, and the interests they have in the subject, or claim to have; and a subpoena must ho issued tliereon and served as in other cases in equity.
Concurrence Opinion
(concurring.) I fully concur in the reasoning 'of the circuit justice, and the conclusions reached,’ but I deem it proper to present some further views in support of our decision.
It is necessary to understand the exact legal relation of the Central Pacific Railroad Company to the United States, in order to, correctly, appreciate the constitutional powers of congress, and of the commission acting under its authority, over it. The Central Pacific Railroad Company is a private corporation, created, and existing under the laws of the state of California. It derived none of its corporate faculties, or franchises, from the United Stales. It is in no way subject to the control, or laws, of the United States, except so far as it is subject to regulation, as an instrument of foreign, or interstate commerce, or their authority to establish post-roads, or their war powers, in pursuance of the constitutional provisions on the subject, or such regulation, as is authorized by the terms of the contract found in the acts of congress of 1862 and 1864, accepted by the railroad coinpany as a contract. The Central Pacific Railroad Company is, simply, an artificial person, created with certain faculties by the state of California, and, it stands in relation to the United States, within the scope of its faculties, in precisely the same situation, as a natural person under like circumstances. The United States have no more, and no less, power over it, than they would have over a natural person in the same situation. The contract might as well have
“These sections, taken together, constitute the contract between the United States and the appellee. U. S. v. Railroad Co., 91 U. S. 72; Sinking Fund Cases, 99 U. S. 700-718; Railroad Co. v. U. SA, 104 U. S. 662. This contract is binding on the United States, and they cannot, without the consent of the company, change its terms by any subsequent legislation. Sinking Fund Cases, supra.”
Being the owner, with the title fully vested in it, the company could dispose of the lands and bonds, at its own will, and pleasure, in the same manner, and to the same extent, and with the same effect, as if the contract had been between two natural persons, without being liable to render any other account to the United States, than it could be called upon to render, had the United States been an association of an equal number of natural persons.
' It is, consequently, a matter of no legal concern to the United States, what disposition the company made of the lands, or bonds, and they have no right to inquire into the matter of their disposition, in any other mode, or under any other circumstances, than they could have been inquired into had the corporation and the United States been two natural persons.
The relation of the Central Pacific Railroad Company to the United States, therefore, under the contract, as a contract, is now, simply, that of debtor, and creditor, with certain covenants for services on its completed road, still to be performed by the latter, with thedebt, and performance of those covenants secured by certain specific liens upon portions of the prop
“The United States occupy towards this corporation a twofold relation,— that of sovereign, and that of creditor. U. S. v. Railroad Co., 98 U. S. 569. Their rights as a sovereign are not crippled because they are creditors, and their privileges as creditors are not enlarged by the charter because of their sovereignty. They cannot, as creditors, demand payment of what is due them, before the time limited by the contract. Neither can they, as sovereign, or creditors, require the company to pay the other debts it owes, before they mature.” 99 U. S. 724.
As to the Central Pacific Railroad Company, the United States do not even occupy the relation of sovereign, except so tar as its road extends through the territories, and, then, only, as to that part of the road within a territory, which is now, only, that part in the territory of Utah; and so far as its authority to regulate commerce with foreign nations, and between the states, is concerned, and these powers are merely police powers. The organization of the Central Pacific Railroad Company is under, and by virtue of, the laws of another sovereignty, and its habitat is in the state of California, beyond the jurisdiction of the United States, except so far as it is subject to the power of congress under some special grant of power, or its control is necessary to carry out some power specially granted. We look, in vain, for any power to deal with it, except the power to regulate its acts, as an instrument of interstate, or foreign commerce, or such power as congress may have over it under its authority to establish post-roads, or under its war powers. The relation of debtor and creditor arising under a contract is but a private relation. It is not a sovereign, or governmental, relation. And the power reserved in the acts of congress to repeal, or amend the act as to the Central Pacific Railroad Company could, only, extend to amendment, so far as it operated as a law, and not as a contract, and, then, not to affect the terms of the contract after it had become executed, and rights had. vested under it.
If, as said by the supreme court, the “privileges” of the United States, “ as creditors, are not enlarged by the charter, because of their sovereignty,” then no greater powers can be conferred upon the commission appointed by congress in this ease, than congress could have conferred upon them for the investigation of matters between debtors and creditors, wlio are natural persons, citizens of, and residing within states. Could "a private creditor authorize, or lawfully make, a compulsory examination of the character provided for in this act, into the private affairs of
“ The United States cannot any more than a state interfere with private rights, except for legitimate governmental purposes. They are not included within the constitutional prohibition which prevents states from passing laws, impairing the obligation of contracts, but equally with the states they are prohibited from depriving persons or corporations of property without due.process of law. They cannot legislate back to themselves, without making compensation, the lands they have given this corporation to aid in the construction of its railroad. neither can they, by legislation compel the corporation to discharge its obligations in respect to the subsidy bonds otherwise than according .to the terms of the contract already made in that connection. The United States are as much bound by their contracts as are individuals. If they repudiate their obligations, it is as much repudiation, with all the wrong and reproach that term implies, as it would be if the repudiator had been a state, or a municipality or a citizen. No change can be made in the title created by the grant of the lands, or in the contract for the subsidy bonds, without the consent of the corporation. All this is indisputable.” The Chief Justice in the Sinking Fund Cases, 99 U. S. 718, 719.
Having ascertained the relation of the parties to each other to be, that of contractors, — that of debtor and creditor by contract, simply, in the same sense, as if both were natural persons, and private citizens, — the question arises, as to rvhat authority congress has, within a state, through commissionfers appointed by it, to investigate the private affairs of a mere contract debtor, and ascertain what he has done with his own money, or what he proposes to do with it, — whether he is making judicious investment of his money or not, — as bearing upon his probable ability to pay his debt, some years in the future, when it shall have matured?
Mr. Justice Field well said in the Sinking Fund Cases:
“When, therefore, the government of the United States entered into the contract with the Central Pacific Railroad Company, it could no more than a private corporation, or a private individual, finally construe and determine the extent of the company’s rights and liabilities. If it had cause of complaint against the company, it could not undertake itself, by legislative decree, to redress the grievances; but was compelled to seek redress, as all other civil corporations are compelled, through the judicial tribunals. If the company was wasting its property, of which no allegation is made, or impairing the security of the government, the remedy by suit was ample. To declare that one of two contracting parties is entitled, under the contract be*263 tween them, to the payment of a greater sum than is admitted to be payable, or to other or greater security than that given, is not a legislative function. It is judicial action; it is the exercise of judicial power, and all such power, with respect to any transaction arising under the laws of the United States, is vested by the constitution in the courts of the country.” 99 U. S. 759, 760.
See, also, authorities cited.
I do not understand, that this doctrine is questioned by the majority of the court. They only differed as to its applicability in that particular case. I do not understand, that the Central Pacific Railroad Company is charged with a violation of any of the terms of its contract, unless it be claimed, that it has failed to pay over the full amount of percentage required by the contract of the not earnings of the road. If it has failed in this matter, it is not a matter of any legal concern to the government, what the company has done with its own. If it has failed in this particular, and there is reason for sustaining an action, the proper mode of procedure for ascertaining the truth, and enforcing the obligation, if violated, is to institute a suit, alleging the facts, and have an investigation in due course of judicial inquiry, and obtain a judgment for any amount improperly withheld. If the full amount has not been paid over, it matters not to the government, how the balance has been expended. The company is liable like any other debtor upon a contract, and not otherwise. But if it be desirable to trace it, and subject the specific fund to the uses contemplated, and there be sufficient ground for so doing, the courts are the proper tribunals in which to effect that object. So, also, if there be a commission of waste upon the property upon which the debt is secured, the courts afford the proper remedy by a suit in equity to restrain the waste. These are the means afforded by the constitution, and laws to private parties for redressing their wrongs. And there is no different remedy provided for the government on its contracts. In such proceedings, there would be allegations, which would inform the defendant what it is called upon to meet. In the language cited by Mr. Justice Field, from a casein the supreme court of Massachusetts, “like all other matters involving a controversy concerning public duty and private lights,” it would in such proceedings “be adjusted and settled in the regular tribunals where questions of law and fact are adjudicated on fixed, established principles, and according to the forms and usages best adapted to secure the impartial administration of justice.” Sinking Fund Cases, 99 U. S. 761 A bill in equity, that seeks a discovery upon general, loose, and vague allegations, is styled a “fishing bill,” and such a bill would be, at once, dismissed on that ground. Story, Eq. Pl. § 325, and cases cited. A general, roving, offensive, inquisitorial, compulsory investigation, conducted by a commission without any allegations, upon no fixed principles, and governed by no rules of law, or of evidence, and no restrictions except its own will, or caprice, is unknown to our constitution and laws; and such an inquisition would be destructive of the rights of fhe citizen, and an intolerable tyranny. Let the power once be established, and there is no knowing, where the practice under it would end.
These principles, it appears to me, are established beyond further
“If the United States is a creditor of any citizen, or of any one else, on whom process can be served, the usual, the only legal mode of enforcing payment of the debt, is by a resort to a court of justice. For this purpose, among others, congress has created courts of the United States, and officers have been appointed to prosecute the pleas of the government in these courts. ” 103 U. S. 193.
Again:
“What was this committee charged to do? To inquire into the nature and history of this real-estate pool. How indefinite. Wliat was the real-estate pool? Is it charged with any crime or offense? If so, the courts alone can punish the members of it. Is it charged with fraud against the government? Here, again, the courts, and they alone, can afford a remedy. Was it a corporation whose powers congress could repeal? There is no suggestion of the kind.” Id. 195.
Again:
“In looking to the preamble and resolutions under which the committee acted, before which Kilbourn refused to testify, we are of opinion that the house of representatives not only exceeded the limit of its own authority, but assumed a power which could only be properly exercised by another branch of the government because it was in its nature clearly judicial.” Id. 192.
And again, after stating some particulars to which the powers of the house to punish extends, the court added:
“Whether the power of punishment in either house, by fine or imprisonment, goes beyond this or not, we are sure that no person can be punished for contumacy as a witness before either house unless his testimony is re*265 quired in a matter into which the 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.” Id. 190.
After a thorough discussion of the case and an elaborate examination of tlio authorities, the court announced its unanimous conclusion in the following terms:
“We are of opinion, for these reasons, that the resolution of the house oí •representativos, authorizing the investigation, was in excess of the power conferred on that body by the constitution; that the committee, therefore, had no lawful authority to require KiTbourn to testify as a witness beyond what he voluntarily chose to tell; that the orders and resolutions of the house and the warrant of the speaker, under which KiTbourn was imprisoned, are, in like manner, void, for want of jurisdiction in that body, and that his imprisonment is without any lawful authority.” Id. 196.
In my judgment the principle established here covers fully the case under consideration. It establishes the position, that the house of representatives has no authority, or jurisdiction, to make a compulsory inquiry into the disposition of the funds of a conventional debtor of the United States; to inquire what this debtor, upon a contract, has done with his money, or to inquire into the private affairs of their debtors upon contract, and those dealing with such debtors.
It is urged that the decision only goes to the point, that private parties dealing with the debtor cannot be examined by the house; that the principle does not extend to the debtor himself, and, especially, to the Central Pacific Company, which is but a corporation, and that the present investigation only extends to what disposition it has made of the bonds, and proceeds of lands received from the government, and the money arising from operating its road. But there is no such limitation in the ruling. Says the court:
“ Can the rights of the pool or of its members, or the rights of the debtor, and of the creditor of the debtor, bo determined by the report oí a committee, or by an act of congress t li they cannot, what authority has the house to enter upon this investigation into the private affairs of individuals who hold no office under the governments” Id. 195.
That the Central Pacific Railroad is a corporation in no way beholden to the United States for its corporate faculties, and franchises, and not a natural person, cannot affect the question. It is but an aggregation of natural persons, and is as much a private party, as if its constituents wore united in a more partnership, instead of a corporation. This principle was maintained in the Railroad Tax Cases, 9 Sawy. 166, and recognized by the supreme court at the argument of the same cases on appeal. The bonds issued, and the lands granted, as we have before seen, under the authorities cited, upon the completion of the road, and the specific earnings of the road, thereafter arising, were the absolute property of the Central Pacific Railroad Company, in which the United States liad no legal concern, whatever, except so far as their lien by contract covers them. There is no element of a trust, public, or otherwise, in the case, as sometimes claimed, except in such sense, as any common carrier, whether by ox team, mule team, horse team, railway ;or steam-ship,
It is further urged, that the judgment of imprisonment, only, was held to be beyond the jurisdiction of the house, — that the house, or congress, may investigate, and call upon the courts when so authorized, as in the present act, to perform the judicial part of the work, by enforcing the requirement of the commissioners. But there is no such limitation in the language of the court, as will be seen by re-examining the passages quoted. On the contrary, the want of power in the house to punish is grounded on the want of power to investigate at all. It is directly said, in the case cited, that the house may punish for contempt, in certain specified cases, wherein the power is conferred by the constitution, or when necessary to the proper execution of powers expressly conferred. And the court with reference to those instances, as we have seen, says, in terms:
“Whether the power of punishment in either house by fine and imprisonment goes beyond this or not, we are sure that 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 those bodies possesses the general power of making inquiry into the private affairs of the citizen.” Kilbourn v. Thompson, 103 U. S. 190.
That was a case, like this, wherein the house was seeking to inquire into the private affairs of the debtor, — seeking to ascertain what that debtor had done with his money, some of which he held as a depositary of the United States. The decision was not put upon the ground, that the house could not in any case punish for contempt, but, on the ground, that the house in cases like this, had no authority to make the inquiry at all, and, consequently, there could be no punishment for contempt, either by the house, or any other body or tribunal.
Under the act how in question, congress has undertaken to authorize a commission to make inquiry into the private affairs of its -creditor,— into the purpose, for which the debtor appropriated its own funds,— which the supreme court, in the case cited, says it has no power to do, and the commission is authorized to call upon the courts to aid it in its unlawful inquiry. The court is not called upon to act in any judicial proceeding, or investigation pending before it, or before any other court, in the discharge of its judicial functions, or any matter ancillary to the exercise of its judicial functions. There is no case or controversy, at all, pending before it of which the proceeding attempted to be authorized is a part, or to which it is ancillary or in any way pertinent. It does not appear to us, that it is contemplated by the act, that the court, in the investigation provided for, when called upon to aid the commission,
As bearing upon the power of congress to compel an answer to criminating questions, or compel the production of private papers, see Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. Rep. 524. The principles therein established are equally applicable to the matter now under consideration. The court seems, therefore, to be called upon to compel, under process for contempt, an answer to any question which the commission sees lit to ask within the scope of the inquiry attempted to be authorized by the act. If this bo so, the court is, simply, made an instrument by this act, in the hands of the commission, to execute its unregulated and unrestricted will. The court is made Ihc ministerial agent of the commission to perform its behests, whenever a witness refuses to respond to a question, or produce papers within the range of the authority attempted to be given by the statute. The judicial department of the government is, simply, made, by this act, an adjunct to the legislative department in the exercise of its political and legislative functions, and powers, to execute its commands,—and that, too, in a matter into which congress, under the decision cited, has no jurisdiction whatever to inquire. I know of no power in congress, to thus render the judicial department subordinate, or ancillary to the legislative and executive departments of the government, or to either of them. If there is any one proposition immutably established, I had supposed it to be, that the judiciary department is absolutely independent of the other departments of the government, — that it cannot be called upon to act a part subordinate to any other department of the government, or to a commission armed with exasperating inquisitorial powers over private affairs, unlimited by any consideration other than its own unregulated discretion. And so I understand the authorities to be. “ The functions of the judges of the courts of the United States are strictly and exclusively judicial. They cannot, therefore, be called upon to advise the president in any interpretation of law, or to act as commissioners in cases of pensions or other like proceedings.” 2 Story, Const. § 1777, and cases cited.
I concur in the order made, discharging the order to show cause.
Concurrence Opinion
(concurring.) In announcing my concurrence in the opinions of the circuit justice and the circuit judge in this matter, I do not deem it necessary to review at any length the questions by them so ably and satisfactorily discussed and decided. In this application to the court to issue its subpoena, and compel answers to be made to the various questions propounded, the court is called upon to exercise no judicial function or power, unless it be the very slight duty of determining whether or not the questions propounded are within the scope of the inquiry authorized by the act of congress creating the commission. The act itself 'is most broad and comprehensive in its terms, and imposes little, if any, restraint upon the commission in the field of its inquiry. It scarcely needs the ruling of a court to determine whether the questions propounded, or any questions which may be propounded, by this commission, are within the scope and purview of the act creating the commission. But, aside from this most simple and limited duty, if duty it may be, the court has no judicial function to perform in this matter. It is simply called upon by the commission to execute its will; to compel the‘attendance and obedience of witnesses, — a purely ministerial duty, — to serve as a convenient adjunct to the commission. I cannot think that the courts were organized for any such purpose, or that they can be called upon to perform any such duty.
I need not advert to the nature and character of many of the questions propounded by the commission, as appears from the record of this proceeding, answers to which the court is asked to compel. They seem to, be quite in keeping with some of the extraordinary powers claimed and exercised by the commission, and to fully confirm their assumed right to disregard the usual and established rules of evidence and principles of law in conducting their investigations. And this court is seriously asked to lend its aid in furtherance of such purpose. Many of ■the questions propounded would seem, from the record, to have been answered as fully as it was possible for the witness to answer them. I do not, however, press this consideration, as I think this decision should rest, not upon the simple fact as to whether or not the questions have been fully answered, but upon- the broader and more important principles which underlie this whole subject, to-wit: Has this commission
[t is not claimed that this is a “case” or a “controversy” between any parties to which the judicial power extends, and over which it has proper jurisdiction. Neither the United ¡hatos nor any other person is making complaint against this respondent, or against said railroad company, in any form or manner known to judicial proceedings. No charges are made against the one or the other, by any one, of duties neglected or obligations unfulfilled. In regard to the very account immediately under consideration by the commission, and in reference to which many of the questions were propounded, to which we are asked to compel answers, it is shown that this account was fully settled and adjusted by and between the United States and said company long ago. Upon pago 21 of the argument of the United Stales attorney, submitted in support of this motion, it is stated:
“Some question was made as to whether, as a matter of fact, the moneys covered by Mr. Stanford’s vouchers had been included in the account rendered to the government for the purpose of ascertaining the net earnings of the company. The commissioners do not desire a decision based upon this question, and therefore concede, for the purpose of this motion, that biro amounts in question have not been charged as against the United States, to the end that this mailer may be disposed of entirely on its merits.”
If this be true, what interest, then, is it to the United Slates, even if it had a right so to do, to inquire how, or in what manner, this account accrued or was paid? It concerns the United States in no manner, — affects no pecuniary right or interest claimed by it, due or not matured. What interest, then, lias the United States in this inquiry beyond that of any third party whoso curiosity might prompt him to inquire into that concerning which lie has no right or interest? Is not this, then, a mere idle inquiry, not made in the interest of, or to preserve or establish the rights of, the government or any person? lias not any third person, to gratify an' idle curiosity, the same right to institute these inquiries, and invoke the aid of the courts in support thereof? Courts do not entertain such investigations or inquiries, or lend their aid thereto. If this power of unlimited, inquisitorial investigation into the a (fairs of private corporations or companies, or of individuals,- — and it concerns all alike, — shall he once established, who can say where it will end, or what will be its limit of injustice at all times, but more especially when called into exercise in times of political excitement, or under the influence of partisan zeal or passion? In the close adherence to well-settled principles of law, founded upon the just observance of the rights of all parties, will we not find, the greatest safety alike to public and private rights?
Without further discussion of the subject, I fully concur in the opinions read, and in the order made.
