In re Voorhis

LEARNED HAND, District Judge

(after stating the facts as above). Chapter 8 of title 2 of the Revised Statutes is in aid of the power of the House of Representatives conferred by section 5 of article 1 of the Constitution. It prescribes how evidence may be perpetuated for use in contested elections. The prerogative of the House is strictly judicial, and descends from the English Parliament as High Court. Perhaps without act of Congress the House has no power to perpetuate testimony at all, just as the District Court, unless similarly authorized, would have no such power. It makes no difference; at least, the writ does not issue out of this court. It is not necessary even to say that it issued out of the House as a court; it is enough if it be the mere creation of the statute. To be within the compass of this court’s powers it must be its order. Merely as a subpoena, eo nomine, the House has more control over it than any other court. Unless under some statute, the District Court has nothing to do with its use or the consequences of disobedience.

Section 116 (Comp. St. § 173) creates a penalty and a crime for disobedience, cognizance over which is given to the District Court. There is no question of the validity of this provision, but how can it be argued that any wider jurisdiction was conferred? The section precludes the supposition that this court was given any power to punish for contempt. Indeed, had that power been added, it would have been anomalous at best, perhaps of doubtful validity, for contempt is a sanction inherent in courts only to protect their own orders. Nor, indeed, would it necessarily follow, as was assumed at the bar, even if this court might punish disobedience to the subpoena as a contempt, that it could supervise its use or quash it when not authorized.

Again, the House is the exclusive judge of the “elections, returns and qualifications of its own members.” Assuming that the ancillary power to perpetuate testimony must have the sanction of Congress, clearly it is the House alone which must on the contest, as a court, determine whether the procedure so created has been regularly followed. Consider the effect of a contrary notion. I am invited here to declare that the notice given under section 105 is insuffilcient This is the only reason urged by the petitioner for quashing the subpoena. But that question is justiciable by the House, and by the House alone. Suppose I were to take sides with the petitioner, and my decision were affirmed by the Circuit Court of Appeals, or perhaps by the Supreme Court on certiorari ? Is the House to yield to that decision ? Clearly not; the Constitution has put that matter exclusively in its own hands. Suppose that it reaches another conclusion. Though the contestant have followed the established procedure, as determined by the House having plenary jurisdiction, it must lose the benefit of the evidence which would otherwise be forthcoming. There is no more propriety in that than in taking jurisdiction over a commission de bene esse out of an independent court.

It may be true that in debt for the penalty, or on indictment, this court might have to inquire as to those very matters. If so, the conflict would be unavoidable; but there is at least this difference. The court would not in that case actively interfere in the proceedings of the House itself. While its decision might not accord with that of the House upon the same issues, the only result would be not to enforce the statutory penalties. And if the House have power to enforce the subpcena by contempt, that sanction would remain.

The position of the board of elections may prove embarrassing,assuming it has no choice but to disregard one law or the other. Yet it is clear either the state or the United States must prevail. Without undertaking to express any opinion on that question, it is enough that Í cannot determine it merely because it would relieve the board. No one suggests that they need surrender the ballots'; section 123 is clearly to the contrary. As to the exhibition of them for a recount, they must unhappily determine that question at their peril. Fortunately, the practical dangers appear rather formal than real. No one can seriously suppose that an honest decision of the board will subject them to severe results.

It may be that chapter 8 of title 2 is too scanty to create a sufficient procedure. With that I have nothing to do; Congress has thought it enough, and it must suffice. But, whatever its adequacy or inadequacy, it can scarcely be charged against it that it failed to provide for quashing the subpoena because of any such reasons as are here suggested. The contestant’s notice may be the equivalent of a pleading, as was suggested at the bar; but, if so, the validity of the subpoena would not depend, under ordinary analogies, upon its sufficiency. At most, no more can be at stake than the cost in which the inquiry may involve the member now returned. The' risk that this will not be made good to him must, as things stand, be accepted as a hazard he accepts in maintaining his office.

Rules discharged.