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$ 750. Power of Congress to Punish for Contempt.

In 1821 the Supreme Court by a decision rendered in the case of Anderson v. Dunno recognized the existence in Congress of a general power to punish for contempt persons disobeying its orders, especially those with reference to the giving of testimony and the production of papers before its committees and commissions of inquiry. In the case of Kilbourn v. Thompson, ever, decided in 1881, the court very much narrowed this power, holding that Congress had the power to compelj information only with reference to matters over which it had legislative power, and that, therefore, it might not punish for contempt a refusal to testify or produce papers bearing upon other subjects. In this respect, being a legislature of limited powers, Congress could not measure its powers by those exercised by the English Parliament. Applying the foregoing principles the court in its opinion said: “In looking to the Preamble and Resolution under which the committee acted, before which Mr. Kilbourn refused to testify, we are of the 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 the power was in its nature clearly judicial.”

That Congress has the power to punish its own members for disorderly behavior, that it may punish by imprisonment a refusal to obey a rule made by it for the preservation of its own order, and inflict penalties in order to compel the attendance of absent members has not to be questioned. In the case Re Chapman, 25 however, decided in 1897, was raised the question whether it had the authority to punish a refusal to testify before a committee which was inquiring not with regard to proposed legislation, but with reference to the truth of charges which had been made reflecting upon the integrity of certain of its members. This power the court upheld.26

23 6 Wh. 204; 5 L. ed. 242.
24 103 U. S. 168; 26 L, ed. 377.
25 166 U. S. 661; 17 Sup. Ct. Rep. 677; 41 L. ed. 1154.

26 The court say: "In Kilbourn v. Thompson (103 l, S. 168; 26 L. cd. 377), among other important rulings, it was held that there existed no general power in Congress, or in either House, to make inquiry into the private affairs of a citizen; that neither House could, on the allegation that an insolvent debtor of the United States was interested in a private business partnership, investigate the affairs of that partnership, as a mere matter of private concern; and that consequently there was no authority in either House to compel a witness to testify on the subject. The case at bar is wholly different. Specific charges publicly made against senators had been brought to the attention of the Senate, and the Senate had determined that investigation was necessary. The subject-matter as affecting the Senate was within the jurisdiction of the Senate. The questions were not intrusions into the affairs of the citizen; they did not seek to ascertain any facts as to the conduct, methods, extent or details of the business of the firm in question, but only whether that firm, confessedly engaged in buying and selling stocks, and the particular stock named, was employed by any senator to buy or sell for him any of that stock, whose market price might be affected by the Senate's action. We cannot regard these questions as amounting to an unreasonable search into the private affairs of the witness simply because he may have been in some degree connected with the alleged transactions, and as investigations of this sort are within the power of either of the two Houses they cannot be defeated on purely sentimental grounds.

The court, furthermore, held in this case that having the power, Congress might, instead of or in addition to itself punishing for contempt, provide by law that a contumacious witness be indicted and punished in the courts for a misdemeanor.

With reference to the authority of the state legislatures to punish for contempt it may be observed that their powers are much broader than those of Congress. Possessing all powers not expressly or impliedly refused them, they have a general inquisitorial power and a corresponding general authority to punish a refusal to testify or to produce papers.

“The questions were undoubtedly pertinent to the subject matter of the inquiry. The resolutions directed the committee to inquire whether any senator has been, or is, speculating in what are known as sugar stocks during the consideration of the tariff bill now before the Senate.' What the Senate might or might not do upon the facts when ascertained, we cannot say, nor are we called upon to inquire whether such ventures might be defensible, as contended in argument, but it is plain that negative answers would have cleared that body of what the Senate regarded as offensive imputations, while affirmative answers might have led to further action on the part of the Senate within its constitutional powers.

“ Nor will it do to hold that the Senate had no jurisdiction to pursue the particular inquiry because the preamble and resolutions did not specify that the proceedings were taken for the purpose of censure or expulsion, if certain facts were disclosed by the investigation. The matter was within the range of the constitutional powers of the Senate. The resolutions adequately indicated that the transactions referred to were deemed by the Senate reprehensible and deserving of condemnation and punishment. The right to ey pel extends to all cases where the offense is such as in the judgment of the Senate is inconsistent with the trust and duty of a member."

§ 751. The Performance of Administrative Acts by the Courts.

Courts have no hesitation in performing ministerial acts, if such acts are incidental to the exercise of their proper judicial functions. But they will not perform administrative acts not so connected.

In Hayburn's case27 the federal circuit judges before whom the question was raised unanimously refused, as directed by an act of Congress, to inquire into and to take evidence as to the claims of invalid pensioners and to submit their findings for final action to the Secretary of War, on the ground that inasmuch as their acts were made reviewable by an executive officer they could not be deemed judicial in character.

In United States v. Ferreira28 the Supreme Court held that an act of Congress that gave to the District Judge of Florida the authority to pass upon certain claims, which decisions were to be reported to the Secretary of the Treasury for his discretionary action thereupon, gave to such judge not judicial but administrative powers, and that, therefore, when so acting, he sat as a commissioner and not as a court, and, consequently, that an appeal would not lie from his decisions to the Supreme Court. The opinion declares: “ The powers conferred by these acts of Congress upon the judge, as well as the Secretary, are, it is true, judicial in their nature; for judgment and discretion must be exercised by both of them. But it is nothing more than the power ordinarily given by law to a commission appointed to adjust claims to lands or money, under a treaty; or special powers to inquire into or decide any particular class of controversies in which the public or individuals may be concerned. A power of this description may constitutionally be conferred on a secretary as well as a commissioner, but is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States."

27 2 Dall. 409; 1 L. ed. 436. 28 13 How. 40; 14 L. ed. 42.

In the case of Gordon v. United States29 the Supreme Court refused to review the action of the Court of Claims in respect to a claim examined and allowed by it under an act of Congress which provided that no money should be paid out of the Treasury for any claim passed upon by the Court of Claims until after an appropriation therefor had been estimated by the Secretary of the Treasury and an appropriation to pay it made by Congress. The appeal of Gordon was dismissed on the ground that Congress could not "authorize or require this [the Supreme] court to express an opinion in a case where its judicial power could not be exercised, and where its judgment would not be final and conclusive upon the rights of the parties, and process of execution awarded to carry it into effect.” “ The award of execution," said the Chief Justice, “is a part and an essential part of every judgment passed by a court having judicial power. It is no judgment in the legal sense often without it. Without such an award the judgment would be inoperative and nugatory leaving the aggrieved party without a remedy. It would be merely an opinion which would remain a dead letter, and without any operation upon the rights of the parties, unless Congress should at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confided to this court in the exercise of its appellate jurisdiction; yet it is the whole power that the court is allowed to exercise under this Act of Congress.” 30

29 2 Wall. 561; 17 L. ed. 921. See, also, 117 U. S. Appex, 697.

30 In the case of Re Sanborn (148 U. S. 222; 13 Sup. Ct. Rep. 577; 37 L. ed. 429) the same doctrine was applied to substantially similar facts. It may be remarked that, though the fourteenth section of the original act of 1863 has been repealed, and the Supreme Court now entertains appeals from the Court of Claims, the judgments are not even now, strictly speaking, self executory, an appropriation by Congress for their payment being required, which appropriations are made at the suggestion of the heads of departments out of whose proceedings the claims have arisen.

$ 752. Judicial Review of Administrative Determinations.

Though, as the foregoing cases show, the courts will not consent to exercise jurisdiction where their decisions are reviewable by administrative officials, they have not refused themselves to review decisions rendered in the first instance by executive organs. In all cases they will, of course, examine, by certiorari or otherwise, whether a given administrative act has been legal in character, that is, whether the agent performing it has had the necessary official power, or whether “due process of law” has been provided.31 In addition they have been willing, where specific legislative authority has been granted them, to review administrative determinations of fact, when such determinations have required the exercise of functions essentially judicial in character.

An excellent illustration of this is the case of United States v. Butterworth in which was sustained the right of appeal to the courts from decisions of the Commissioner of Patents. The court review the patent legislation of Congress and point out that property rights are involved, that the determination of claims for patents involves the adjudication of disputed questions of fact upon scientific or legal principles, the process being essentially judicial in character, and that the court though interposed as an aid to the patent office is not subject to it, its judgments being binding upon the parties, and conclusive upon the patent office itself. “The commissioner cannot question it. He is bound to record and obey it. His failure to refuse to execute by appropriate action would undoubtedly be corrected and supplied by suitable judicial process.

33

31 See Chapter LXIV.
32 112 U. S. 50; 5 Sup. Ct. Rep. 25; 28 L. ed. 656.

33 In United States v. Duell (172 U. S. 576; 19 Sup. Ct. Rep. 286; 43 L. ed. 559), decided in 1899, this case was approved and the judicial right of revision stated, if anything, more strongly, the court saying: “ We perceive no ground for overruling that case or dissenting from the reasoning of the opinion; and as the proceeding in the court of appeals is an appeal in an interference controversy presents all the features of a civil case, - a plaintiff, a defendant, and a judge,- and deals with a question judicial in its nature, in respect of which the judgment of the court is final, so far as the particular action of the patent office is concerned, such judgment is none

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