OpenJurist

363 US 420 Hannah v. M Larche a Hannah

363 U.S. 420

80 S.Ct. 1502

4 L.Ed.2d 1307

John A. HANNAH et al., Appellants,
v.
Margaret M. LARCHE et al. John A. HANNAH et al., Petitioners, v. J. A. H. SLAWSON et al.

Nos. 549, 550.

Argued Jan. 18 and 19, 1960 on the Petition for Writ of Certiorari, theJurisdiction on Appeal, and on the Merits.

Decided June 20, 1960.

Mr. Lawrence E. Walsh, Washington, D.C., for appellants in No. 549 and for petitioners in No. 550.

Mr. Jack P. F. Gremillion, Baton Rouge, La., for appellees in No. 549.

Mr. W. M. Shaw, Homer, La., for respondents in No. 550.

Mr. Chief Justice WARREN delivered the opinion of the Court.

1

These cases involve the validity of certain Rules of Procedure adopted by the Commission on Civil Rights, which was established by Congress in 1957.1 Civil Rights Act of 1957, 71 Stat. 634, 42 U.S.C. §§ 1975—1975e, 42 U.S.C.A. §§ 1975—1975e. They arise out of the Commission's investigation of alleged Negro voting deprivations in the State of Louisiana. The appellees in No. 549 are registrars of voters in the State of Louisiana, and the respondents in No. 550 are private citizens of Louisiana.2 After having been summoned to appear before a hearing which the Commission proposed to conduct in Shreveport, Louisiana, these registrars and private citizens requested the United States District Court for the Western District of Louisiana to enjoin the Commission from holding its anticipated hearing. It was alleged, among other things, that the Commission's Rules of Procedure governing the conduct of its investigations were unconstitutional. The specific rules challenged are those which provide that the identity of persons submitting complaints to the Commission need not be disclosed, and that those summoned to testify before the Commission, including persons against whom complaints have been filed, may not cross-examine other witnesses called by the Commission. The District Court held that the Commission was not authorized to adopt the Rules of Procedure here in question, and therefore issued an injunction which prohibits the Commission from holding any hearings in the Western District of Louisiana as long as the challenged procedures remain in force. The Commission requested this Court to review the District Court's decision.3 We granted the Commission's motion to advance the cases, and oral argument was accordingly scheduled on the jurisdiction on appeal in No. 549, on the petition for certiorari in No. 550, and on the merits of both cases.

2

Having heard oral argument as scheduled, we now take jurisdiction in No. 549 and grant certiorari in No. 550. The specific questions which we must decide are (1) whether the Commission was authorized by Congress to adopt the Rules of Procedure challenged by the respondents, and (2) if so, whether those procedures violate the Due Process Clause of the Fifth Amendment.

3

A description of the events leading up to this litigation is necessary not only to place the legal questions in their proper factual context, but also to indicate the significance of the Commission's proposed Shreveport hearing. During the months prior to its decision to convene the hearing, the Commission had received some sixty-seven complaints from individual Negroes who alleged that they had been discriminatorily deprived of their right to vote. Based upon these complaints, and pursuant to its statutory mandate to 'investigate allegations in writing under oath or affirmation that certain citizens of the United States are being deprived of their right to vote and have that vote counted by reason of their color, race, religion, or national origin,'4 the Commission began its investigation into the Louisiana voting situation by making several ex parte attempts to acquire information. Thus, in March 1959, a member of the Commission's staff interviewed the Voting Registrars of Claiborne, Caddo, and Webster Parishes, but obtained little relevant information. During one of these interviews the staff member is alleged to have informed Mrs. Lannie Linton, the Registrar of Claiborne Parish, that the Commission had on file four sworn statements charging her with depriving Negroes of their voting rights solely because of their race. Subsequent to this interview, Mr. W. M. Shaw, Mrs. Linton's personal attorney, wrote a letter to Mr. Gordon M. Tiffany, the Staff Director of the Commission, in which it was asserted that Mrs. Linton knew the sworn complaints lodged against her to be false. The letter also indicated that Mrs. Linton wished to prefer perjury charges against the affiants, and Mr. Shaw therefore demanded that the Commission forward to him copies of the affidavits so that a proper presentment could be made to the grand jury. On April 14, 1959, Mr. Tiffany replied to Mr. Shaw's letter and indicated that the Commission had denied the request for copies of the sworn affidavits. Mr. Shaw was also informed of the following official statement adopted by the Commission:

4

'The Commission from its first meeting forward, having considered all complaints submitted to it as confidential because such confidentiality is essential in carrying out the statutory duties of the Commission, the Staff Director is hereby instructed not to disclose the names of complainants or other information contained in complaints to anyone except members of the Commission and members of the staff assigned to process, study, or investigate such complaints.'

5

A copy of Mr. Tiffany's letter was sent to Mr. Jack P. F. Gremillion, the Attorney General of Louisiana, who had previously informed the Commission that under Louisiana law the Attorney General is the legal adviser for all voting registrars in any hearing or investigation before a federal commission.

6

Another attempt to obtain information occurred on May 13, 1959, when Mr. Tiffany, upon Commission authorization, sent a list of 315 written interrogatories to Mr. Gremillion. These interrogatories requested very detailed and specific information, and were to be answered by the voting registrars of nineteen Louisiana parishes. Although Mr. Gremillion and the Governor of Louisiana had previously assented to the idea of written interrogatories, on May 28, 1959, Mr. Gremillion sent a letter to Mr. Tiffany indicating that the voting registrars refused to answer the interrogatories. The reasons given for the refusal were that many of the questions seemed unrelated to the functions of voting registrars, that the questions were neither accompanied by specific complaints nor related to specific complaints, and that the time and research required to answer the questions placed an unreasonable burden upon the voting registrars.

7

In response to this refusal, on May 29, 1959, Mr. Tiffany sent a telegram to Mr. Gremillion, informing the latter that the interrogatories were based upon specific allegations received by the Commission, and reaffirming the Commission's position that the identity of specific complainants would not be disclosed. Mr. Tiffany's letter contained a further request that the interrogatories be answered and sent to the Commission by June 5, 1959. On June 2, 1959, Mr. Gremillion wrote a letter to Mr. Tiffany reiterating the registrars' refusal, and again requesting that the names of complainants be disclosed.

8

Finally, as a result of this exchange of correspondence, and because the Commission's attempts to obtain information ex parte had been frustrated, the Commission, acting pursuant to Section 105(f) of the Civil Rights Act of 1957,5 decided to hold the Shreveport hearing commencing on July 13, 1959.

9

Notice of the scheduled hearing was sent to Mr. Gremillion, and between June 29 and July 6, subpoenas duces tecum were served on the respondents in No. 549, ordering them to appear at the hearing and to bring with them various voting and registration records within their custody and control. Subpoenas were also served upon the respondents in No. 550. These private citizens were apparently summoned to explain their activities with regard to alleged deprivations of Negro voting rights.6

10

On July 8, 1959, Mr. Tiffany wrote to Mr. Gremillion, enclosing copies of the Civil Rights Act and of the Commission's Rules of Procedure.7 Mr. Gremillion's attention was also drawn to Section 102(h) of the Civil Rights Act, which permits witnesses to submit, subject to the discretion of the Commission, brief and pertinent sworn statements for inclusion in the record.8

11

Two days later, on July 10, 1959, the respondents in No. 549 and No. 550 filed two separate complaints in the District Court for the Western District of Louisiana. Both complaints alleged that the respondents would suffer irreparable harm by virtue of the Commission's refusal to furnish the names of persons who had filed allegations of voting deprivations, as well as the contents of the allegations, and by its further refusal to permit the respondents to confront and cross-examine the persons making such allegations. In addition, both complaints alleged that the Commission's refusals not only violated numerous provisions of the Federal Constitution, but also constituted 'ultra vires' acts not authorized either by Congress or the Chief Executive. The respondents in No. 549 also alleged that they could not comply with the subpoenas duces tecum because Louisiana law prohibited voting registrars from removing their voting records except 'upon an order of a competent court,' and because the Commission was not such a 'court.' Finally, the complaint in No. 549 alleged that the Civil Rights Act was unconstitutional because it did not constitute 'appropriate legislation within the meaning of Section (2) of the XV Amendment.'

12

Both complaints sought a temporary restraining order and a permanent injunction prohibiting the members of the Commission (a) from compelling the 'testimony from or the production of any records' by the respondents until copies of the sworn charges, together with the names and addresses of the persons filing such charges were given to the respondents;9 (b) from 'conducting any hearing pursuant to the rules and regulations adopted by' the Commission; and (c) from 'conspiring together * * * or with any other person * * * to deny complainants their rights and privileges as citizens' of Louisiana or the United States 'or to deny to complainants their right to be confronted by their accusers, to know the nature and character of the charges made against them,' and to be represented by counsel. The complaint in No. 549 also sought a declaratory judgment that the Civil Rights Act of 1957 was unconstitutional.

13

On the day that the complaints were filed, the district judge held a combined hearing on the prayers for temporary restraining orders. On July 12, 1959, he found that the respondents would suffer irreparable harm if the hearings were held as scheduled, and he therefore issued the requested temporary restraining orders and rules to show cause why a preliminary injunction should not be granted. Larche v. Hannah, D.C., 176 F.Supp. 791. The order prohibited the Commission from holding any hearings which concerned the respondents or others similarly situated until a determination was made on the motion for a preliminary injunction.

14

Inasmuch as the complaint in No. 549 attacked the constitutionality of the Civil Rights Act, a three-judge court was convened pursuant to 28 U.S.C. § 2282, 28 U.S.C.A. § 2282. Since the complaint in No. 550 did not challenge the constitutionality of the Civil Rights Act of 1957, that case was scheduled to be heard by a single district judge. That district judge was also a member of the three-judge panel in No. 549, and a combined hearing was therefore held on both cases on August 7, 1959.

15

On October 7, 1959, a divided three-judge District Court filed an opinion in No. 549. Larche v. Hannah, 177 F.Supp. 816. The court held that the Civil Rights Act of 1957 was constitutional since it 'very definitely constitutes appropriate legislation' authorized by the Fourteenth and Fifteenth Amendments and Article I, Section 2, of the Federal Constitution. Id., at page 821. The court then held that since the respondents' allegations with regard to apprisal, confrontation, and cross-examination raised a 'serious constitutional issue,' this Court's decision in Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377, required a preliminary determination as to whether Congress specifically authorized the Commission 'to adopt rules for investigations * * * which would deprive parties investigated of their rights of confrontation and cross-examination and their right to be apprised of the charges against them.' 177 F.Supp. at page 822. The court found that Congress had not so authorized the Commission, and an injunction was therefore issued. In deciding the case on the issue of authorization, the court never reached the 'serious constitutional issue' raised by the respondents' allegations.10 The injunction prohibits the Commission from holding any hearing in the Western District of Louisiana wherein the registrars, 'accused of depriving others of the right to vote, would be denied the right of apprisal, confrontation, and cross examination.'11 The single district judge rendered a decision in No. 550 incorporating by reference the opinion of the three-judge District Court, and an injunction, identical in substance to that entered in No. 549, was issued.

I.

16

We held last Term in Greene v. McElroy, supra, that when action taken by an inferior governmental agency was accomplished by procedures which raise serious constitutional questions, an initial inquiry will be made to determine whether or not 'the President or Congress, within their respective constitutional powers, specifically has decided that the imposed procedures are necessary and warranted and has authorized their use.' Id., 360 U.S. at page 507, 79 S.Ct. at page 1419. The considerations which prompted us in Greene to analyze the question of authorization before reaching the constitutional issues presented are no less pertinent in this case. Obviously, if the Civil Rights Commission was not authorized to adopt the procedures complained of by the respondents, the case could be disposed of without a premature determination of serious constitutional questions. See Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012; Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204; Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; Peters v. Hobby, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129.

17

We therefore consider first the question of authorization. As indicated above, the Commission specifically refused to disclose to the respondents the identity of persons who had submitted sworn complaints to the Commission and the specific charges contained in those complaints. Moreover, the respondents were informed by the Commission that they would not be permitted to cross-examine any witnesses at the hearing. The respondents contend, and the court below held, that Congress did not authorize the adoption of procedural rules which would deprive those being investigated by the Commission of the rights to apprisal, confrontation, and cross-examination. The court's holding is best summarized by the following language from its opinion:

18

'(W)e find nothing in the Act which expressly authorizes or permits the Commission's refusal to inform persons, under investigation for criminal conduct, of the nature, cause and source of the accusations against them, and there is nothing in the Act authorizing the Commission to deprive these persons of the right of confrontation and cross-examination.' 177 F.Supp., at page 822.

19

After thoroughly analyzing the Rules of Procedure contained in the Civil Rights Act of 1957 and the legislative history which led to the adoption of that Act, we are of the opinion that the court below erred in its conclusion and that Congress did authorize the Commission to adopt the procedures here in question.

20

It could not be said that Congress ignored the procedures which the Commission was to follow in conducting its hearings. Section 102 of the Civil Rights Act of 1957 lists a number of procedural rights intended to safeguard witnesses from potential abuses. Briefly summarized, the relevant subdivisions of Section 102 provide that the Chairman shall make an opening statement as to the subject of the hearing; that a copy of the Commission's rules shall be made available to witnesses; that witnesses 'may be accompanied by their own counsel for the purpose of advising them concerning their constitutional rights'; that potentially defamatory, degrading, or incriminating testimony shall be received in executive session, and that any person defamed, degraded, or incriminated by such testimony shall have an opportunity to appear voluntarily as a witness and to request the Commission to subpoena additional witnesses; that testimony taken in executive session shall be released only upon the consent of the Commission; and that witnesses may submit brief and pertinent sworn statements in writing for inclusion in the record.12

21

The absence of any reference to apprisal, confrontation, and cross-examination, in addition to the fact that counsel's role is specifically limited to advising witnesses of their constitutional rights, creates a presumption that Congress did not intend witnesses appearing before the Commission to have the rights claimed by respondents. This initial presumption is strengthened beyond any reasonable doubt by an investigation of the legislative history of the Act.

22

The complete story of the 1957 Act begins with the 1956 House Civil Rights Bill, H.R. 627. That bill was reported out of the House Judiciary Committee without any reference to the procedures to be used by the Commission in conducting its hearings. H.R.Rep. No. 2187, 84th Cong., 2d Sess. During the floor debate, Representative Dies of Texas introduced extensive amendments designed to regulate the procedure of Commission hearings. 102 Cong.Rec. 13542. Those amendments would have guaranteed to witnesses appearing before the Commission all of the rights claimed by the respondents in these cases. The amendments provided, in pertinent part, that a person who might be adversely affected by the testimony of another 'shall be fully advised by the Commission as to the matters into which the Commission proposes to inquire and the adverse material which is proposed to be presented'; that a person adversely affected by evidence or testimony given at a public hearing could 'appear and testify or file a sworn statement in his own behalf'; that such a person could also 'have the adverse witness recalled' within a stated time; and that he or his counsel could cross-examine adverse witnesses.13

23

The bill, as finally passed by the House, contained all of the amendments proposed by Representative Dies. 102 Cong.Rec. 13998—13999. However, before further action could be taken, the bill died in the Senate. Although many proposals relating to civil rights were introduced in the 1957 Session of Congress, two bills became the prominent contenders for support. One was S. 83, a bill introduced by Senator Dirksen containing the same procedural provisions that the amended House bill in 1956 had contained. The other bill, H.R. 6127, was introduced by Representative Celler, Chairman of the House Judiciary Committee, and this bill incorporated the so-called House 'fair play' rules as the procedures which should govern the conduct of Commission hearings.14 After extensive debate and hearings, H.R. 6127 was finally passed by both Houses of Congress, and the House 'fair play' rules, which make no provision for advance notice, confrontation, or cross-examination, were adopted in preference to the more protective rules suggested in S. 83.15

24

The legislative background of the Civil Rights Act not only provides evidence of congressional authorization, but it also distinguishes these cases from Greene v. McElroy, supra, upon which the court below relied so heavily. In Greene there was no express authorization by Congress or the President for the Department of Defense to adopt the type of security clearance program there involved. Nor was there any legislative history or executive directive indicating that the Secretary of Defense was authorized to establish a security clearance program which could deprive a person of his government employment on the basis of secret and undisclosed information. Therefore, we concluded in Greene that because of the serious constitutional problems presented, mere acquiescence by the President or the Congress would not be sufficient to constitute authorization for the security clearance procedures adopted by the Secretary of Defense. The facts of this case present a sharp contrast to those before the Court in Greene. Here, we have substantially more than the mere acquiescence upon which the Government relied in Greene. There was a conscious, intentional selection by Congress of one bill, providing for none of the procedures demanded by respondents, over another bill, which provided for all of those procedures. We have no doubt that Congress' consideration and rejection of the procedures here at issue constituted an authorization to the Commission to conduct its hearings according to the Rules of Procedure it has adopted, and to deny to witnesses the rights of apprisal, confrontation, and cross-examination.

II.

25

The existence of authorization inevitably requires us to determine whether the Commission's Rules of Procedure are consistent with the Due Process Clause of the Fifth Amendment.16

26

Since the requirements of due process frequently vary with the type of proceeding involved, e.g., compare Opp Cotton Mills, Inc. v. Administrator, 312 U.S. 126, 152, 61 S.Ct. 524, 536, 85 L.Ed. 624, with Interstate Commerce Comm. v. Louisville & N.R. CO., 227 U.S. 88, 91, 33 S.Ct. 185, 186, 57 L.Ed. 431, we think it is necessary at the outset to ascertain both the nature and function of this Commission. Section 104 of the Civil Rights Act of 1957 specifies the duties to be performed by the Commission. Those duties consist of (1) investigating written, sworn allegations that anyone has been discriminatorily deprived of his right to vote; (2) studying and collecting information 'concerning legal developments constituting a denial of equal protection of the laws under the Constitution'; and (3) reporting to the President and Congress on its activities, findings, and recommendations.17 As is apparent from this brief sketch of the statutory duties imposed upon the Commission, its function is purely investigative and fact-finding. It does not adjudicate. It does not hold trials or determine anyone's civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make determinations depriving anyone of his life, liberty, or property. In short, the Commission does not and cannot take any affirmative action which will affect an individual's legal rights. The only purpose of its existence is to find facts which may subsequently be used as the basis for legislative or executive action.

27

The specific constitutional question, therefore, is whether persons whose conduct is under investigation by a governmental agency of this nature are entitled, by virtue of the Due Process Clause, to know the specific charges that are being investigated, as well as the identity of the complainants,18 and to have the right to crossexamine those complainants and other witnesses. Although these procedures are very desirable in some situations, for the reasons which we shall now indicate, we are of the opinion that they are not constitutionally required in the proceedings of this Commission.

28

'Due process' is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. Thus, when governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process. On the other hand, when governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used. Therefore, as a generalization, it can be said that due process embodies the differing rules of fair play, which through the years, have become associated with differing types of proceedings. Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account. An analysis of these factors demonstrates why it is that

29

It is probably sufficient merely to indicate that the rights claimed by respondents are normally associated only with adjudicatory proceedings, and that since the Commission does not adjudicate it need not be bound by adjudicatory procedures. Yet, the respondents contend and the court below implied, that such procedures are required since the Commission's proceedings might irreparably harm those being investigated by subjecting them to public opprobrium and scorn, the distinct likelihood of losing their jobs, and the possibility of criminal prosecutions. That any of these consequences will result is purely conjectural. There is nothing in the record to indicate that such will be the case or that past Commission hearings have had any harmful effects upon witnesses appearing before the Commission. However, even if such collateral consequences were to flow from the Commission's investigations, they would not be the result of any affirmative determinations made by the Commission, and they would not affect the legitimacy of the Commission's investigative function.19

30

On the other hand, the investigative process could be completely disrupted if investigative hearings were transformed into trial-like proceedings, and if persons who might be indirectly affected by an investigation were given an absolute right to cross-examine every witness called to testify. Fact-finding agencies without any power to adjudicate would be diverted from their legitimate duties and would be plagued by the injection of collateral issues that would make the investigation interminable. Even a person not called as a witness could demand the right to appear at the hearing, cross-examine any witness whose testimony or sworn affidavit allegedly defamed or incriminated him, and call an unlimited number of witnesses of his own selection.20 This type of proceeding would make a shambles of the investigation and stifle the agency in its gathering of facts.

31

In addition to these persuasive considerations, we think it is highly significant that the Commission's procedures are not historically foreign to other forms of investigation under our system. Far from being unique, the Rules of Procedure adopted by the Commission are similar to those which, as shown by the Appendix to this opinion,21 have traditionally governed the proceedings of the vast majority of governmental investigating agencies.

32

A frequently used type of investigative agency is the legislative committee. The investigative function of such committees is as old as the Republic.22 The volumes written about legislative investigations have proliferated almost as rapidly as the legislative committees themselves, and the courts have on more than one occasion been confronted with the legal problems presented by such committees.23 The procedures adopted by legislative investigating committees have varied over the course of years. Yet, the history of these committees clearly demonstrates that only infrequently have witnesses appearing before congressional committees been afforded the procedural rights normally associated with an adjudicative proceeding. In the vast majority of instances, congressional committees have not given witnesses detailed notice or an opportunity to confront, cross-examine and call other witnesses.24

33

The history of investigations conducted by the executive branch of the Government is also marked by a decided absence of those procedures here in issue.25 The best example is provided by the administrative regulatory agencies. Although these agencies normally make determinations of a quasi-judicial nature, they also frequently conduct purely fact-finding investigations. When doing the former, they are governed by the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. §§ 1001—1011, 5 U.S.C.A. §§ 1001—1011, and the parties to the adjudication are accorded the traditional safeguards of a trial. However, when these agencies are conducting nonadjudicative, fact-finding. Investigations, rights such as apprisal, confrontation, and cross-examination generally do not obtain.

34

A typical agency is the Federal Trade Commission. its rules draw a clear distinction between adjudicative proceedings and investigative proceedings. 16 CFR, 1958 Supp., § 1.34. Although the latter are frequently initiated by complaints from undisclosed informants, id., §§ 1.11, 1.15, and although the Commission may use the information obtained during investigations to initiate adjudicative proceedings, id., § 1.42, nevertheless, persons summoned to appear before investigative proceedings are entitled only to a general notice of 'the purpose and scope of the investigation,' id., § 1.33, and while they may have the advice of counsel, 'counsel may not, as a matter of right, otherwise participate in the investigation.' Id., § 1.40. The reason for these rules is obvious. The Federal Trade Commission could not conduct an efficient investigation if persons being investigated were permitted to convert the investigation into a trial. We have found no authorities suggesting that the rules governing Federal Trade Commission investigations violate the Constitution, and this is understandable since any person investigated by the Federal Trade Commission will be accorded all the traditional judicial safeguards at a subsequent adjudicative proceeding, just as any person investigated by the Civil Rights Commission will have all of these safeguards, should some type of adjudicative proceeding subsequently by instituted.

35

Although regulatory agency which distinguishes between adjudicative and investigative proceedings is the Securities and Exchange Commission. This Commission conducts numerous investigations, many of which are initiated by complaints from private parties. 17 CFR § 202.4. Although the Commission's Rules provide that parties to adjudicative proceedings shall be given detailed notice of the matters to be determined, id., 1959 Supp., § 201.3, and a right to cross-examine witnesses appearing at the hearing, id., § 201.5, those provisions of the Rules are made specifically inapplicable to investigations, id., § 201.20,26 even though the Commission is required to initiate civil or criminal proceedings if an investigation discloses violations of law.27 Undoubtedly, the reason for this distinction is to prevent the sterilization of investigations by burdening them with trial-like procedures.

36

Another type of executive agency which frequently conducts investigations is the presidential commission. Although a survey of these commissions presents no definite pattern of practice, each commission has generally been permitted to adopt whatever rules of procedure seem appropriate to it,28 and it is clear that many of the most famous presidential commissions have adopted rules similar to those governing the proceedings of the Civil Rights Commission.29 For example, the Roberts Commission established in 1941 to ascertain the facts relating to the Japanese attack upon Pearl Harbor, and to determine whether the success of the attack resulted from any derelictions of duty on the part of American military personnel, did not permit any of the parties involved in the investigation to cross-examine other witnesses. In fact, many of the persons whose conduct was being investigated were not represented by counsel and were not present during the interrogation of other witnesses. Hearings before the Joint Committee on the Investigation of the Pearl Harbor Attack, 79th Cong., 1st Sess., pts. 22—25.

37

Having considered the procedures traditionally followed by executive and legislative investigating agencies, we think it would be profitable at this point to discuss the oldest and, perhaps, the best known of all investigative bodies, the grand jury. It has never been considered necessary to grant a witness summoned before the grand jury the right to refuse to testify merely because he did not have access to the identity and testimony of prior witnesses. Nor has it ever been considered essential that a person being investigated by the grand jury be permitted to come before that body and cross-examine witnesses who may have accused him of wrongdoing. Undoubtedly, the procedural rights claimed by the respondents have not been extended to grand jury hearings because of the disruptive influence their injection would have on the proceedings, and also because the grand jury merely investigates and reports. It does not try.

38

We think it is fairly clear from this survey of various phases of governmental investigation that witnesses appearing before investigating agencies, whether legislative, executive, or judicial, have generally not been accorded the rights of apprisal, confrontation, or cross-examination. Although we do not suggest that the grand jury and the congressional investigating committee are identical in all respects to the Civil Rights Commission,30 we mention them, in addition to the executive agencies and commissions created by Congress, to show that the rules of this Commission are not alien to those which have historically governed the procedure of investigations conducted by agencies in the three major branches of our Government. The logic behind this historical practice was recognized and described by Mr. Justice Cardozo's landmark opinion in Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796. In that case, the Court was concerned with the type of hearing that the Tariff Commission was required to hold when conducting its investigations. Specifically, the Court was asked to decide whether the Tariff Act of 1922, 42 Stat. 858, gave witnesses appearing before the Commission the right to examine confidential information in the Commission files and to cross-examine other witnesses testifying at Commission hearings. Although the Court did not phrase its holding in terms of due process, we think that the following language from Mr. Justice Cardozo's opinion is significant:

39

'The Tariff Commission advises; these others ordain. There is indeed this common bond that all alike are instruments in a governmental process which according to the accepted classification is legislative, not judicial. * * * Whatever the appropriate label, the kind of order that emerges from a hearing before a body with power to ordain is one that impinges upon legal rights in a very different way from the report of a commission which merely investigates and advises. The traditionary forms of hearing appropriate to the one body are unknown to the other. What issues from the Tariff Commission as a report and recommendation to the President, may be accepted, modified, or rejected. If it happens to be accepted, it does not bear fruit in anything that trenches upon legal rights.' 288 U.S., at page 318, 53 S.Ct. at page 359.

40

And in referring to the traditional practice of investigating bodies, Mr. Justice Cardozo had this to say:

41

'(W)ithin the meaning of this act the 'hearing' assured to one affected by a change of duty does not include a privilege to ransack the records of the Commission, and to subject its confidential agents to an examination as to all that they have learned. There was no thought to revolutionize the practice of investigating bodies generally, and of this one in particular.' Id., 288 U.S. at page 319, 53 S.Ct. at page 360. (Emphasis supplied.)

42

Thus, the purely investigative nature of the Commission's proceedings, the burden that the claimed rights would place upon those proceedings, and the traditional procedure of investigating agencies in general, leads us to conclude that the Commission's Rules of Procedure comport with the requirements of due process.31

43

Nor do the authorities cited by respondents support their position. They rely primarily upon Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 999, 82 L.Ed. 1129; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817; and Greene v. McElroy, supra. Those cases are all distinguishable in that the government agency involved in each was found by the Court to have made determinations in the nature of adjudications affecting legal rights. Thus, in Morgan, the action of the Secretary of Agriculture in fixing the maximum rates to be charged by market agencies at stockyards was challenged. In voiding the order of the Secretary for his failure to conduct a trial-like hearing, the Court referred to the adjudicatory nature of the proceeding:

44

'Congress, in requiring a 'full hearing,' had regard to judicial standards—not in any technical sense but with respect to those fundamental requirements of fairness which are of the essence of due process in a proceeding of a judicial nature.' 304 U.S. at page 19, 58 S.Ct. at page 777.

45

Likewise, in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 140—141, 71 S.Ct. 624, 632—633, 95 L.Ed. 817, this Court held that the Attorney General's action constituted an adjudication. Finally, our decision last year in Greene v. McElroy lends little support to the respondents' position. The governmental action there reviewed was certainly of a judicial nature. The various Security Clearance Boards involved in Greene were not conducting an investigation; they were determining whether Greene could have a security clearance—a license in a real sense, and one that had a significant impact upon his employment. By contrast, the Civil Rights Commission does not make any binding orders or issue 'clearances' or licenses having legal effect. Rather, it investigates and reports leaving affirmative action, if there is to be any, to other governmental agencies where there must be action de novo.

46

The respondents have also contended that the Civil Rights Act of 1957 is inappropriate legislation under the Fifteenth Amendment. We have considered this argument, and we find it to be without merit. It would unduly lengthen this opinion to add anything to the District Court's disposition of this claim. See 177 F.Supp., at pages 819—821.

47

Respondents' final argument is that the Commission's hearings should be governed by Section 7 of the Administrative Procedure Act, 60 Stat. 241, 5 U.S.C. § 1006, 5 U.S.C.A. § 1006, which specifies the hearing procedures to be used by agencies falling within the coverage of the Act. One of those procedures is the right of every party to conduct 'such cross-examination as may be required for a full and true disclosure of the facts.' However, what the respondents fail to recognize is that Section 7, by its terms, applies only to proceedings under Section 4, 60 Stat. 238, 5 U.S.C. § 1003, 5 U.S.C.A. § 1003 (rule making), and Section 5, 60 Stat. 239, 5 U.S.C. § 1004, 5 U.S.C.A. § 1004 (adjudications), of the Act. As we have already indicated, the Civil Rights Commission performs none of the functions specified in those sections.

48

From what we have said, it is obvious that the District Court erred in both cases in enjoining the Commission from holding its Shreveport hearing. The court's judgments are accordingly reversed, and the cases are remanded with direction to vacate the injunctions.

49

Reversed and remanded.

50

(For opinion of Mr. Justice FRANKFURTER, concurring in the result, see 363 U.S. at page 486, 80 S.Ct. at page 1542.)

51

(For concurring opinion of Mr. Justice HARLAN, joined by Mr. Justice CLARK, see 363 U.S. at page 493, 80 S.Ct. at page 1542.)

52

(For dissenting opinion of Mr. Justice DOUGLAS, joined by Mr. Justice BLACK, see post, 363 U.S. at page 493, 80 S.Ct. at page 1546.) APPENDIX TO OPINIONOF THE COURT1

53

(Footnotes at end of table)

Extent of agency's

Scope of agency's subpoena power in

54

Agency investigative authority investigative

55

proceedings

56

Executive and The Commission is authorized The Commission may

57

Administrative to "make such studies and subpoena any person

58

Agencies2 investigations, * * * and hold to appear and

59

Atomic Energy such meetings or hearings as testify or produce

60

Commission. (it) may deem necessary or documents "at any

61

proper to assist it in

62

designated place."

63

exercising" any of its statutory

68 Stat. 948, 42

64

functions. 68 Stat. 948, 42 U.S.C.

65

U.S.C. § 2201(c),

66

§ 2201(c).

The right, if any, of

The type of notice persons affected by

67

required to an investigation to Miscellaneous

68

be given in cross-examine others Comments

69

investigative testifying at

70

proceedings3 investigative

proceedings4

71

This is not This is not specified The Commission's

72

specified by by statute. The Rules of Practice

73

statute. The Commission's Rules of draw a sharp

74

Commission's Rules Practice do not distinction between

75

of Practice require that those informal and formal

76

provide that (t)he summoned to appear before hearings. Formal hearings

77

procedure to be informal hearings are used only in "cases of

78

followed in be given the right to adjudication," 10 CFR

79

informal hearings cross-examine other § 2.708, and parties

80

shall be such as witnesses. Rather, to the hearings are

81

will best serve the Commission is given detailed notice

82

the purpose of given the discretion of the subject of the

83

the hearing. to adopt those hearing, id., §

84

10 CFR § 2.720. procedures which "will best 2.735, as well as the

85

The Rules of serve the purpose of right to cross-examine

86

Practice do not the hearing." 10 CFR witnesses, id., §

87

require any § 2.720. 2.747. Informal

88

specific type hearings are used in

89

of notice to investigations "for the

90

be given in purposes of obtaining

91

informal hearings. necessary or useful

92

Ibid. information, and

93

affording

94

participation by

95

interested persons,

96

in the formulation,

97

amendment, or

98

rescission of

99

rules and

100

regulations."

101

Id., § 2.708.

The safeguards which

102

are accorded in the

103

formal adjudicative

104

hearings

105

are not mentioned

106

in the Commission's

Rule relating to

107

informal hearings.

108

Id., § 2.720.

Extent of agency's

Scope of agency's subpoena power in

109

Agency investigative authority investigative

110

proceedings

111

Federal (1) The Commission is authorized (1) The Commission

112

Communications to investigate any matters may "subpena the

113

Commission. contained in a complaint "in attendance and

114

such manner and by such means

115

testimony of

116

as it shall deem proper." 48

117

witnesses and the

Stat. 1073, 47 U.S.C. § 208, 47

118

production of all

119

U.S.C.A. § 208. books, papers,

120

(2) The Federal Communications

121

schedules of

Commission was also authorized

122

charges, contracts,

123

to conduct a special investigation

124

agreements and

125

of the American Telephone and

126

documents relating

Telegraph Company, and to obtain

127

to any matter under

128

information concerning the company's

129

investigation." 48

130

history and structure, the services

Stat. 1096, 47

131

rendered by it, its failure

132

to U.S.C. § 409(e),

133

reduce rates, the effect of

47 U.S.C.A. § 409

134

monopolistic control on the

135

(e).

136

company, the methods of

137

(2) The Commission

138

competition engaged in by the

139

was also given the

140

company, and the company's

141

subpoena power by

142

attempts to influence public

143

the statute

144

opinion by the use of propaganda

145

authorizing the

146

49 Stat. 43.

147

the American

Telephone and

148

Telegraph Company.

49 Stat. 45

149

Federal Trade (1) The Commission is authorized (1) The Commission

150

Commission. to investigate "the may "subpoena the

151

organization, business, conduct,

152

attendance and

153

practices, and management of any

154

testimony of

155

corporation engaged in

156

witnesses and the

157

commerce"; to make an production of all

158

investigation of the manner in

159

such documentary

160

which antitrust decrees are being

161

evidence relating to

162

carried out; to investigate and

163

any matter under

164

report the facts relating to any

165

investigation. 38

The right, if any, of

The type of notice persons affected by

166

required to an investigation to Miscellaneous

167

be given in cross-examine others Comments

168

investigative testifying at

169

proceedings3 investigative

proceedings4

170

This is not This is not specified It should b noted

171

specified by by statute. Nor do that the

172

statute. The the Commission's Commission's Report

173

Commission's Rules Rules of Practice on the Telephone

174

of Practice do refer to cross-examination Investigation made no

175

not specify the in investigative mention of the type

176

type of notice proceedings. Therefore, of notice, if any, given to

177

to be given in whether persons those summoned to appear at

178

investigative appearing at an the investigation.

179

proceedings. investigation have the Nor was there any

180

However, the Rules privilege of cross- reference to cross-

181

do provide that examining witnesses examination. The

182

the (p)rocedures apparently depends upon Commission did permit

183

to be followed by whether the the Company "to

184

the Commission, Commission is of the submit statements

185

shall, unless opinion that in writing

186

specifically cross-examination pointing out

187

prescribed * * * in "will best serve the any inaccuracies

188

the (Rules), be such purposes of such in factual data

189

as in the opinion proceeding." 47 CFR § statistics in

190

of the Commission 1.10. It should also be the reports

191

will best serve the noted that even in introduced in

192

purposes of * * * that portion of the the hearings or

193

(any investigative) Commission's Rules in any testimony

194

proceeding. 47 CFR relating to adjudicative in connection

195

§ 1.10. proceedings, there therewith, provided

196

is no specific provision

197

that such statements

198

relating to cross- were confined to

199

examination. Id. § § the presentation

1.101-1.193. of facts and that no

200

attempt would be

201

be made therein to

202

draw conclusions

203

therefrom." H. R. Doc.

204

No. 340, 76th Cong.,

205

1st Sess xviii.

206

(1) This is not (1) This is not (1) It is interesting

207

specified by specified by statute. The to note that the

208

statute. The Commission's Rules of Commission's Rules

209

Commission's Rules Practice provide that of Practice draw

210

of Practice a person required to an express and sharp

211

provide that testify in an distinction between

212

(a)ny party under investigative proceeding investigative and

213

investigation "may be accompanied adjudicative

214

compelled to and advised by proceedings and the

215

furnish information counsel, but counsel may Commission's Rules

216

or documentary not, as a matter of relating to notice

217

evidence shall be right, otherwise and cross-examination

218

advised with respect participate in the in investigative

Extent of agency's

Scope of agency's subpoena power in

219

Agency investigative authority investigative

220

proceedings

221

alleged violations of the

222

Stat. 722, 15 U.S.C.

223

Federal antitrust Acts by any § 49, 15 U.S.C.A.

224

Trade corporation; and § 49.

225

Commission - "to investigate * * * (2) The Commission

226

Continued. trade conditions in and with was also given the

227

foreign countries where

228

subpoena power

229

associations, combinations,

230

under the statute

231

or practices of manufacturers,

232

authorizing the

233

merchants, or traders, or other

234

investigation of the

235

conditions, may affect the foreign

236

motor vehicle

237

trade of the United States." 38

238

industry. 52

Stat. 721-722, 15 U.S.C. § 46, 15

239

Stat. 218.

240

U.S.C.A. § 46.

241

(2) The Commission was also

242

authorized to conduct a special

243

investigation of the motor

244

vehicle industry to determine (a)

245

"the extent of concentration of

246

control and of monopoly in the

247

manufacturing, warehousing,

248

distribution, and sale of

249

automobiles, accessories, and

250

parts, including methods and

251

devices used by manufacturers

252

for obtaining and maintaining

253

their control or monopoly * * *

254

and the extent, if any, to which

255

fraudulent, dishonest, unfair,

256

and injurious methods (were)

257

employed, including combinations,

258

monopolies, price fixing,

259

or unfair trade practices"; and

260

(b) " the extent to which any

261

of the antitrust laws of the

United States (were) being

262

violated." 52 Stat. 218.

The right, if any, of

The type of notice persons affected by

263

required to an investigation to Miscellaneous

264

be given in cross-examine others Comments

265

investigative testifying at

266

proceedings3 investigative

proceedings4

267

to the purpose and investigation." 16 CFR,1959 proceedings are very

268

scope of the Supp., § 1.40. similar to those adopted

269

investigation. over, while the Rules by the Civil Rights

270

16 CFR, 1959 Supp., of Practice make no Commission.

271

§ 1.33. mention of the right (2) It should also be

272

(2) The Commission's to cross-examine observed that FTC

273

Report on the Motor witnesses in investigations may be

274

Vehicle Industry did investigative proceedings, be initiated "upon

275

not indicate what see id., § 1.31-1.42, such a complaint by members

276

type of notice, if right is specifically of the consuming

277

any, was given to given to parties in an public, businessmen,

278

those summoned to adjudicative or the concerns aggrieved

279

testify at the proceeding. Id., § 3.16. by unfair practices," 16

280

investigation. (2) The Commission's CFR, 1959 Supp., §

281

H. R. Doc. No. 468, Report on the Motor 1.11, and that

282

76th Cong., 1st Vehicle Industry did complaints received

283

Sess. Presumably, not refer to cross- by the Commission

284

the Commissioner's examination. H.R. Doc. may charge "any

285

regular Rules of No. 468, 76th Cong., violation of law over

286

Practice obtained. 1st Sess. Presumably, which the Commission

287

the Commission's has jurisdiction." Id.,

288

regular Rules of Practice

289

§ 1.12

290

obtained. (3) Also relevant to

291

our inquiry is the

292

fact that the

Commission

293

does not "publish or

294

divulge the name of

295

an applicant or

296

complaining party."

297

Id., § 1.15.

298

(4)Finally, it is

299

important to observe

300

that the FTC,

301

unlike

The Civil Rights

Commission, has the

302

a thority to

303

commence

304

adjudicative

305

proceedings

306

based upon the

307

material obtained by

308

means of

309

investigative

310

proceedings. Id.,

311

§ 1.42.

Extent of agency's

Scope of agency's subpoena power in

312

Agency investigative authority investigative

313

proceedings

314

National Labor Under the National Labor "For the purpose of

315

Relations Relations Act, the Board is all hearings and

316

Board. given the power to investigate investigations * * *

317

petitions and charges submitted

318

the Board (may)

319

to it relating to union

320

* * * copy any

321

representation and unfair labor

322

evidence of any

323

practices. 61 Stat. 144, 149, 29

324

person being

325

U.S.C. §§ 159(c), 160(l), 29 U.S.

326

investigated or

327

C.A. §§ 159(c), 160(l).

328

proceeded against

329

that relates to any

330

matter under

331

investigation," and

332

it may also issue

333

subpoenas requiring

334

the attendance and

335

testimony of

336

witnesses in any

337

proceeding or

338

investigation. 61

339

Stat. 150, 29 U.S.C.

340

§ 161, 29 U.S.C.A.

341

§ 161.

342

Securities and (1) Under the Securities Act of All of the Acts

343

Exchange 1933, as amended, the which authorize

344

Commission. Commission is authorized to the Commission

345

conduct "all investigations to conduct

346

which, * * are necessary and

347

investigations also

348

proper for the enforcement of"

349

bestow upon it the

350

the Act. 48 Stat. 85, 15 U.S.C.

351

the power to

352

§ 77s(b), 15 U.S.C.A. § 77s(b).

353

subpoena witnesses,

354

(2) The Securities Exchange

355

compel their

Act of 1934 authorizes the

356

attendance, and

Commission to "make such

357

require the

358

investigations as it production of any

359

deems necessary to any books,

360

determine whether correspondence,

361

any person has memoranda,

362

violated or is contracts,

363

about to violate any agreements,

364

provisions of (the Act)

365

and other records

366

or any rule or regulation

367

which are relevant

368

thereunder." 48 Stat. to the investigation.

369

899, 15 U.S.C. § 78u (a),

Securities Act of

370

15 U.S.C.A. § 78 (a). 1933, 48 Stat. 85,

371

(3) The Public Utility Holding

372

15 U.S.C. § 77s (b),

Company Act of 1935 empowers

373

15 U.S.C.A. §

374

the Commission to 77c (b);

375

"investigate any facts,

Securities Exchange

The right, if any, of

The type of notice persons affected by

376

required to an investigation to Miscellaneous

377

be given in cross-examine others Comments

378

investigative testifying at

379

proceedings3 investigative

proceedings4

380

This is not This is not specified

It should be noted

381

specified by by statute. The that the National

382

statute. The Board's Statements of Labor Relations

383

Board's Statements Procedure and Rules Board may use the

384

of Procedure and and Regulations information collected

385

Rules and Regulation provide for the right to during preliminary

386

provide for the cross-examine investigations to

387

preliminary witnessess at formal, initiate adjudicative

388

investigation of adjudicative hearings, 29 proceedings, 61 Stat. 149,

389

all petitions and CFR, 1960 Supp., §§ 29 U.S.C.§ 160(l), 29

390

charges received 101.10, 102.38. 102.66, U.S.C.A. § 160 (l).

391

by the Board. 102.86, 102,90, but The Commission on Civil

392

Although a copy of there is no such Rights has no such

393

the initial charge provision with regard power. Moreover, the

394

may be served upon preliminary Board, unlike the

395

an alleged violater, investigations. Id., § § Civil Rights Commission,

396

there is no 101.4, 101.18,101.22, may use the

397

specific rule 101.27,101.32, 102.63, information obtained

398

requiring the Board 102.77, 102.85. by it through

399

to give notice of investigations to

400

the preliminary petition the federal

401

investigation. See courts for appropriate

402

29 CFR, 1960 Supp., injunctive relief, 61

403

§§ 101.4, Stat. 149, 29

101.18, 101.22, U.S.C. § 160(l), 29

404

101.27, 101.32, U.S.C.A. § 160(l).

405

102.63, 102.77,

406

102.85.

407

This is not This is not specified The Securities

408

specified by. by statute. The and Exchange

409

statute. Nor do Commission's Rules of Commission's procedures

410

the Commission's Practice make no for investigative

411

Rules of Practice mention of the right proceedings are very

412

relating to formal to cross-examine similar to those of

413

investigations make witnesses in investigative the Civil Rights

414

any mention of the proceedings. 17 CFR Commission.

415

type of notice § 202.4. Parties are Investigations may

416

which must be given given the right to be initiated upon

417

in such proceedings. cross-examine witnesses complaints received from

418

17 CFR § 202.4. in adjudicative members of the public,

419

The Commission's proceedings, id., § and these complaints

420

Rules do provide 201.5, but this may contain specific

421

for the giving provision is made charges of illegal

422

of notice in specifically inapplicable conduct. 17 CFR §

423

adjudicative to investigative 202.4. It should be

424

proceedings, id., proceedings. Id., § 201.20. noted, however, that

425

1959 Supp., § 201.3, the Securities and

426

but this provision Exchange

427

is made Commission,

428

specifically unlike the

429

inapplicable to Civil Rights

430

investigative Commission, is an

431

proceedings. adjudicatory body,

432

Id., § 210.20 and it may use the

Extent of agency's

Scope of agency's subpoena power in

433

Agency investigative authority investigative

434

proceedings

435

Securities conditions, practices, Act of 1934, 48

436

and Exchnage or matters which it may Stat. 900, 15 U.S.C.

437

Commission - deem necessary or § 78u (b),

438

Continued. appropriate to determine 15 U.S.C.A.

439

whether any person has

440

§ 78u (b); Public

441

violated or is about Utility Holding

442

to violate any provision

Company Act of

443

of (the Act) or any 1935, 49 Stat. 831,

444

rule or regulation 15 U.S.C. § 79r (c),

445

thereunder, or to aid in the

15 U.S.C.A. § 78r

446

enforcement of the provisions

447

(c); Trust Indenture

448

of (the Act), in the prescribing

Act of 1939, 53

449

of rules and regulations

450

Stat.1174 15 U.S.C.

451

thereunder, or in obtaining

452

§ 77uuu (a), 15

453

information to serve as a

U.S.C.A. § 77uuu

454

basis for recommending further

455

(a); Investment

456

legislation concerning the

457

Company Act of 1940,

458

matters to which (the Act)

54 Stat. 842, 15

459

relates." 49 Stat. 831, 15 U.S.C.

460

§ 80a-41(b).

461

U.S.C. § 79r (a), 15 U.S.C.A.

15 U.S.C.A. § 80a-41

462

§ 79r (a). (b); Investment

463

(4) The Trust Indenture Act of

Advisers Act of 1940

1939 authorizes the 54 Stat. 853, 15

Commission to conduct "any

464

U.S.C. § 80b-9(b).15.

465

investigation * * * which

466

U.S.C.A. § 805-9(b).

467

* * * is necessary and proper

468

for the enforcement of" the

469

Act. 53 Stat. 1174, 15 U.S.C.

470

§ 77uuu (a), 15 U.S.C.A. §

471

77 uuu (a).

472

(5) The Investment Company

Act of 1940 gives the

Commission the power to

473

"make such investigations as

474

it deems necessary to

475

determine whether any person

476

has violated or is about to

477

violate any provision of

478

* * * (the Act) or of any

479

rule, regulation, or order

480

thereunder, or to determine

481

whether any action in any

482

court or any proceeding

483

before the Commission shall

484

be instituted under * * *

485

(the Act) against a particular

486

person or persons, or with

487

respect to a particular

488

person or persons, or with

489

respect to a particular

490

transaction or transactions."

491

54 Stat. 842, 15 U.S.C. §

492

80a-41(a), 15 U.S.C.A. §

493

80a-41(a).

494

(6) Finally, under the

Investment Advisers Act of

1940, the Commission is

495

authorized to determine by

The right, if any, of

The type of notice persons affected by

496

required to an investigation to Miscellaneous

497

be given in cross-examine others Comments

498

investigative testifying at

499

proceedings3 investigative

proceedings4

500

information gathered

501

through

502

investigative

503

proceedings to

504

initiate

505

"administrative

506

proceedings looking

507

to the imposition of

508

remedial sanctions,

509

* * * (or) injuction

510

proceedings in the

511

courts, and, in the

512

case of a willful

513

violation," it may

514

refer the "matter to

515

the Department of

Justice for criminal

516

prosecution," Ibid.

See also Securities

517

Act of 1933,

518

48 Stat. 86,

519

15 U.S.C.

520

§ 77t (b),

521

15 U.S.C.A,

522

§ 77t (b);

Securities

Exchange Act of

523

1934, 48 Stat.

524

900 15 U.S.C.

525

§ 78u (e),

526

15 U.S.C.A,

527

§ 78u (e); Public

Utility Holding

528

Company Act of 1935,

529

49 Stat.

530

832, 15 U.S.C.

531

§ 79r (f),

532

15 U.S.C.A.

533

§ 79r (f):

Investment Company

534

Act of 1940.

535

54 Stat.

536

843, 15 U.S.C.

537

§ 80a-41

538

(e), 15 U.S.C.A.

539

§ 80a-

41 (e): Investment

Advisers Act of

540

1940, 54 Stat. 854,

541

15 U.S.C. §

542

80b-9(e),

543

15 U.S.C.A.

544

§ 80b-9(e).

Extent of agency's

Scope of agency's subpoena power in

545

Agency investigative authority investigative

546

proceedings

547

Securities investigation whether "the

548

and Exchange provisions of * * * (the Act)

549

Commission - or of any rule or regulation

Continued prescribed under the

550

the authority thereof, have been or

551

are about to be violated by any

552

person." 54 Stat. 853, 15 U.S.C.

553

§ 80b-9(a), 15 U.S.C.A.

554

§ 80b-9(a).

555

Office of Price The Defense Production Act of The Defense

556

Stabilization.5 1950 authorized the President to Production Act of

557

"issue regulations and orders

1950 conferred upon

558

establishing a ceiling or

559

the President the

560

ceilings on the price, rental,

561

power, by * * *

562

commission, margin,

563

"subpena, or

564

rate, fee, charge, otherwise, to

565

or allowance paid or obtain such

566

received on the sale or delivery,

567

information from,

568

or the purchase or receipt,

569

require such reports

570

by or to any person, of any

571

and the keeping of

572

material or service, and at

573

such records by,

574

the same time * * issue

575

make such inspection

576

regulations and orders

577

of the books,

578

stabilizing wages, records, and

579

salaries, and other other writings,

580

compensation in accordance

581

premises or property

582

with provisions of" the

583

of, and take the

584

Act. 64 Stat. 803, 50 U.S.C.A.

585

sworn testimony of,

586

Appendix, § 2102(b). This * * *

587

any person as

588

authority was delegated to the

589

may be necessary or

Economic Stabilization

590

appropriate, in his

591

Adminstrator by Exec. Order No.

592

discretion, to the

10161, 15 Fed. Reg. 6105, 50

593

enforcement or the

594

U.S.C.A. Appendix, § 2071 note.

595

administration of

The Administrator in turn

596

(the) Act and the

597

delegated the duty of issuing

598

regulations or orders

599

price regulations to the Office

600

issued thereunder."

601

of Price Stabilization. Gen. Order

64 Stat. 816, 50

602

No. 2 of the Economic U.S.C.A. Appendix,

603

Stabilization Agency, 16 Fed. Reg. § 2155.

This power

604

738. Pursuant to this authority,

605

was delegated to

606

the Office of Price Stabilization

607

the Office of Price

608

promulgated Rules of Procedure,

Stabilization by

Section 2 of which provided that

609

Exec. Order No.

610

investigations would be held before

611

10161, 15 Fed. Reg.

612

the issuance of a ceiling price

613

6105, 50 U.S.C.A.

614

regulation. Price Procedural Appendix,

615

§ 2071

616

Regulation 1, Revision 2—note;

Gen. Order

617

General Price Procedures,

No. 2 of the Economic

618

§ 2, 17 Fed. Reg. 3788.

619

Stabilization Agency,

620

16 Fed. Reg. 738.

The right, if any, of

The type of notice persons affected by

621

required to an investigation to Miscellaneous

622

be given in cross-examine others Comments

623

investigative testifying at

624

proceedings3 investigative

proceedings4

625

This was not This was not It should be noticed

626

specified by specified by statute or that the Office's

627

statute or Executive Order. Nor preissuance hearings

628

Executive Order. did the Office's Rules usually led to

629

The Office's of Procedure make determinations which

630

Rules of Procedure any mention of the right had severe effects

631

provided that to cross-examine upon certain individuals;

632

a general public witnesses appearing at yet, there

633

notice was to preissuance hearings. was no provision for

634

be given in the The Rules merely said personalized detailed

635

Federal Register that the hearing was notice or cross-

636

of all pre-issuance to "be conducted in examination.

637

hearings. Price such manner,

638

Procedural consistent with the need

639

Regulation for expeditious action,

640

1—General Price as will permit the fullest

Prrocedures, § possible presentation

4, 17 Fed. Reg. of the evidence by

641

3788. such persons as are,

642

in the judgment of

643

the Director, best

644

qualified to provide

645

information with

646

respect to matters

647

considered at the hearing

648

or most likely to be

649

seriously affected by

650

action which may be

651

taken as a result of

652

the hearing."Price

Procedural Regulation

1--General Price

653

procedures, § 5, 17 Fed.

654

Reg. 3788.

Extent of agency's

Scope of agency's subpoena power in

655

Agency investigative authority investigative

656

proceedings

657

Office of Price The Administrator was "For the purpose of

658

Administration.6 "authorized to make such obtaining any

659

studies and investigations and

660

information (in an

661

to obtain such information as he

662

investigation) * * *

663

(deemed) necessary or proper

664

the Administrator

665

to assist him in prescribing any

666

(could) by subpena

667

regulation or order under (the)

668

require any * * *

Act, or in the administration

669

person to appear and

670

and enforcement of (the) Act

671

testify or to appear

672

and regulations, orders, and

673

and produce

674

price schedules thereunder."

675

documents, or both,

56 Stat. 30. at any designated

676

place." 56 Stat. 30.

677

The Department (1) Under the Perishable (1) The Perishable

678

of Agriculture. Agricultural Commodities Act Agricultural

679

of 1930, the Department is

Commodities Act of

680

authorized to investigate any

1930 authorizes

681

complaint filed with the

682

the Secretary to

Secretary alleging that someone

683

"require by subpoena

684

has violated the Act. 46 Stat.

685

the attendance and

686

534, 7 U.S.C. § 499f(c),

687

testimony of

7 U.S.C.A. § 499f(c). witnesses and the

688

(2) The Department also enforces

689

production of such

690

the Packers and Stockyards Act

691

accounts, records,

The right, if any, of

The type of notice persons affected by

692

required to an investigation to Miscellaneous

693

be given in cross-examine others Comments

694

investigative testifying at

695

proceedings3 investigative

proceedings4

696

This was not This was not specified It should be noted

697

specified by by statute. The that even though the

698

statute. The Administrator's Rules of Administrator's

699

Administrator's Rules Procedure made no proceedings smacked

700

of Procedure did mention of the right to of an adjudication,

701

not specify the cross-examine there was no express

702

type of notice, witnesses during either requirement that

703

if any, to be given investigations or either detailed

704

during the preissuance hearings. notice or the right to

705

investigative 32 CFR, 1944 Supp., to cross-examine

706

stage of price § § 1300.2, 1300.5. witnesses be given

707

regulation The Rules merely provided to the parties

708

proceedings. 32 CFR that hearings were to affected by the

709

1944 Supp., § be conducted "in such Administrator's actions.

1300.2. After manner, consistent

710

the investigation, with the need for

711

the Administrator expeditious action, as

712

could hold a will permit the fullest

713

price hearing possible presentation

714

prior to issuance of evidence by such

715

of the regulation, persons as are, in the

716

and general judgment of the

717

notice of the Administrator, best

718

hearing was to qualified to provide

719

be published in the information with respect to

Federal Register. matters considered at

Id., § 1300.4. the hearing or most

720

likely to be seriously

721

affected by action

722

which may be taken

723

as a result of the

724

hearing." Id.,

725

§ 1300.-5.

726

This is not This is not specified (1) The Department of

727

specified by by statute. The of Agriculture,

728

statute. The Department's Rules of unlike the Civil

729

Department's Rules Practice adopted Rights Commission,

730

of Practice adopted pursuant to the may use the information

731

pursuant to the Perishable Agricultural obtained through

732

Perishable Commodities Act and investigations in its

733

Agricultural the Packers and subsequent adjudicative

734

Commodities Act and Stockyards Act proceedings under

735

the Packers and contain no reference to the Perishable

736

Stockyards Act do cross-examination Agricultural Extent of agency's

Scope of agency's subpoena power in

737

Agency investigative authority investigative

738

proceedings

739

The of 1921, which, for the purposes and memoranda as

740

Department of that Act, gives the Secretary may be material for

741

of Agriculture - the investigative and other the determination

742

Continued. enforcement powers possessed by of any complaint

743

the Federal Trade Commission, 42

744

under" the Act. 46

745

Stat. 168, 7 U.S.C. § 222,

746

Stat. 536, 7 U.S.C.

747

7 U.S.C.A. § 222. The § 499m (b), 7 U.

Department's Rules of Practice

748

S.C.A. § 499m(b).

749

also provide that investigations

750

(2) The Packers and

751

shall be conducted when informal

Stockyards Act of

752

complaints charging a violation

1921 gives to the

753

of the Act are received by the

Secretary those

754

Secretary. 9 CFR § 202.23.

755

powers conferred

756

upon the Federal

Trade Commission by

757

"sections 46 and

758

48-50 of Title 15."

Among those powers

759

is the authority to

760

subpoena witnesses.

42 Stat. 168, 7

U.S.C. § 222, 7

761

U.S.C.A. § 222.

The right, if any, of

The type of notice persons affected by

762

required to an investigation to Miscellaneous

763

be given in cross-examine others Comments

764

investigative testifying at

765

proceedings3 investigative

proceedings4

766

not refer to the during investigative Commodities Act.

767

type of notice, if proceedings. 7 CFR § 47. 7 CFR § 47.7.

768

any, which must 3; 9 CFR § 202.3, (2) it is also of interest

769

be given in although such a right is that investigative

770

investigative given in the formal, proceedings under both

771

proceedings, 7 CFR adjudicative stage of the Perishable

772

§ 47.3; 9 CFR the proceedings. 7 Agricultural

773

§ 202.3, CFR § §47.15, 47.32; Commodities Act

774

although a 9 CFR § § 202.11, 202.29, and the Packers

775

specific right to 202.48. and Stockyards

776

notice is given Act are commenced

777

in adjudicative by the filing

778

proceedings. 7 CFR of complaints from

779

§ § 47.6, 47.27; private individuals.

9 CFR § § 202.6 7 CFR § 47.3

780

202.23, 202.39. 9 CFR § 202.3.

781

(3) Finally, it

782

should be noted that

783

the Department of

Agriculture

784

administers

785

the Federal Seed

786

Act, 53 Stat. 1275,

787

7 U.S.C. §§ 1551-1610,

788

7 U.S.C.A. §§

1551-1610, which

789

makes it unlawful to

790

engage in certain

791

practices relating

792

to the labeling

793

and importation

794

of seeds, and a

795

statute regulating

796

export standards

797

for apples and pears,

798

48 Stat. 123,

799

7 U.S.C.

800

§ § 581-589,7 U.S.C.A.

801

§§ 581-589. The Rules

802

of Practice adopted

803

by the Secretary

804

pursuant to

805

statutory

806

authorization

807

provide that

808

proceedings under

809

these statutes shall

810

be initiated by an

811

investigation of the

812

charges contained

813

in any complaint

814

received by the

815

the Secretary.These

Rules

816

make no mention of the

817

type of notice, if

818

any,

819

given to those being

820

investigated; nor is

Extent of agency's

Scope of agency's subpoena power in

821

Agency investigative authority investigative

822

proceedings

Commodity

Exchange

Commission

823

(Department of The Commodity Exchange Act The Secretary of

824

Agriculture). empowers the Secretary of Agriculture (acting

825

Agriculture (acting through the through the

Commission) to "make such

Commission) is given

826

investigations as he may deem

827

the same subpoena

828

necessary to ascertain the facts

829

powers as are vested

830

regarding the operations of

831

in the Interstate

832

boards of trade, whether prior

Commerce Commission

833

or subsequent to the enactment

834

by the Interstate

835

of" the Act. The Secretary is

Commerce Act, 24

836

also empowered to "investigate

837

Stat. 383, 27 Stat.

838

marketing conditions of commodity

839

443, 32 Stat. 904,

840

and commodity products and

34 Stat. 798, 49

841

byproducts, including supply

842

and U.S.C. §§ 12, 46-48,

843

demand for these commodities, cost

844

49 U.S.C.A. §§ 12,

845

to the consumer, and handling and

846

46-48. 42 Stat. 1002,

847

transportation charges." 42 Stat.

848

as amended, 49 Stat.

849

1003, as amended, 49 Stat. 1499,

850

69 Stat. 160,

851

1491, 7 U.S.C. § 12, 7 U.S.C. § 15,

852

7 U.S.C.A. § 12. 7 U.S.C.A. § 15.

Food and Drug

Administration

853

(Department of The Regulations adopted The Act makes no

854

Health, Education pursuant to the Federal provision for

855

and Welfare). Caustic Poison Act, 44 Stat. compelling

1406, 15 U.S.C. §§ 401-411, 15

856

testimony.

U.S.C.A. §§ 401-411, authorize

857

the Administration to conduct

858

investigations, 21 CFR § 285.15,

859

and to hold preliminary hearings

860

"whenever it appears * * *

861

that the provisions of section 3

862

or 6 of the Caustic Poison Act

863

* * * have been violated and

864

criminal proceedings are

865

contemplated." Id., § 285.17.

866

[471]

The right, if any, of

The type of notice persons affected by

867

required to an investigation to Miscellaneous

868

be given in cross-examine others Comments

869

investigative testifying at

870

proceedings3 investigative

proceedings4

871

there any reference

872

to cross-examination

873

during the

874

investigative stage

875

of the proceedings

876

7 CFR § §

877

201,151, 33.17.

878

This is not This is not specified It is of interest to

879

specified by. The by statute. The note that

880

statute. The Commission has no special investigations may be

881

Commission has no rules for be initiated by

882

special rules for investigations; however, complaints from private

883

investigations; its Rules of Practice parties and that the

884

however, its Rules provide that a private information

885

of Practice party may initiate a obtained during

886

provide that a disciplinary proceeding investigations

887

private party by filing a may be used

888

may initiate a complaint, and that an in a subsequent

889

disciplinary investigation of the adjudicative

890

proceeding by complaint will be made. proceeding

891

filing a complaint, No mention is 17 CFR § 0.53.

892

and that an made of the right to

893

investigation of cross-examine

894

the complaint will witnesses during

895

be made. No mention investigative proceedings.

896

is made of the type 17 CFR § 0.53.

897

of notice, if any,

898

which must be

899

given in

900

investigative

901

proceedings.

902

17 CFR § 0.53.

903

This is not This is not specified It should be noted

904

specified by by statute. The that the

905

statute. The Administration's Administration

906

Administration's regulations make no investigates

907

Regulations make no mention of the right specific instances

908

reference to notice to cross-examine of possible unlawful

909

of investigative witnesses appearing at activity, and that

910

proceedings, but investigative proceedings unlike the Civil

911

they do require or preliminary hearings. Rights Commission,

912

that general 21 CFR § 285.17. the Secretary

913

notice be given (acting through

914

to those against the Administration)

915

whom prosecution is required to

916

is contemplated. refer possible

917

21 CFR § 285.17. violations to the

918

proper United States

919

Attorney. 44 Stat.

920

1409, 15 U.S.C.A.

921

§ 409 (b),15 U.S.C.A.

922

§ 409 (b).

Extent of agency's

Scope of agency's subpoena power in

923

Agency investigative authority investigative

924

proceedings

925

Presidential (1) The Commission is authorized The Commission

926

Commissions "to investigate the may, "for the

927

United States administration and fiscal purposes of carrying

928

Tariff and industrial effects of the customs out its functions

929

Commission. laws of this country now in and duties in

930

force or which may be hereafter

931

connection with any

932

enacted, the relations

933

investigation

934

between the rates of authorized

935

duty on raw materials by law, * * * (1)

936

and finished * * * products,

937

* * * have access

938

the effects of ad valorem

939

and to and the right to

940

specific duties and of compound

941

copy any document,

942

specific and ad valorem duties,

943

paper, or record,

944

all questions relative

945

pertinent to the

946

to the arrangement of schedules

947

subject matter under

948

and classification of articles

949

investigation, in

950

in the several schedules of the

951

the possession of

952

customs law, and, in general,

953

any person, firm,

954

* * * the operation of customs

955

copartnership,

956

laws, including their relation

957

corporation, or

958

to the Federal revenues,

959

association engaged

960

(and) their effect upon the

961

in the production,

962

industries and labor of the

963

importation, or

964

country." 46 Stat. 698, 19 U.S.C. §

965

distribution of

966

1332(a), 19 U.S.C.A. § 1322(a).

967

any article under

968

(2) The Commission is also

969

investigation,

970

authorized "to investigate the

971

(2)* * * summon

972

tariff relations between the

973

witnesses, take

United States and foreign

974

testimony, and

975

countries, commercial treaties,

976

administer oaths,

977

preferential provisions,

978

(3)* * * require

979

economic alliances, the effect of

980

any person, firm,

981

export bounties and preferential

982

copartnership,

983

transportation rates, the volume of

984

corporation, or

985

importations compared with

986

association, to

987

domestic production and

988

produce books or

989

consumption, and conditions,

990

papers relating

991

causes and effects relating to

992

to any matter

993

competition of foreign

994

pertaining to such

995

industries with those of the United

996

investigation, and

States, including dumping and cost

997

(4) * * * require

998

of production." 46 Stat. 698, 19

999

any person, firm,

1000

U.S.C. § 1332(b), 19 U.S.C.A.

1001

copartnership,

1002

§ 1322(b). corporation, or

1003

(3) The Commission may

1004

association, to

1005

investigate "the Paris

1006

furnish in writing,

Economy Pact and similar

1007

in such detail and

1008

organizations and arrangements

1009

in such form as the

1010

Europe." 46 Stat. 698, 19 U.S.C. §

1011

commission may

1012

1322(c), 19 U.S.C.A. § 1332(c).

1013

prescribe,

1014

(4) The Commission is information in

1015

empowered to "investigate the

1016

their possession

1017

difference in the costs of

1018

pertaining to such

The right, if any, of

The type of notice persons affected by

1019

required to an investigation to Miscellaneous

1020

be given in cross-examine others Comments

1021

investigative testifying at

1022

proceedings3 investigative

proceedings4

1023

Many of the This is not specified (1) Since the

1024

statutory by statute. The Commission's

1025

provisions Commission's Rules permit investigative powers

1026

authorizing a party who has entered are generally

1027

the Commission an appearance to question exercised to aid

1028

to hold hearings a witness "for the the President

1029

pursuant to its purpose of assisting in the execution

1030

investigatory the Commission in obtaining of his duties under

1031

power require that the material facts with the Tariff Act, it

1032

reasonable notice respect to the subject is readily apparent that

1033

of prospective matter of the investgation." the Commission's

1034

hearings be given. 19 CFR § 201.14. However, investigations may

1035

46 Stat. 701, 19 all questioning is done have far reaching

1036

U.S.C. § 1336 under the direction of effects upon those

1037

(a), 19 U.S.C.A. and subject to the persons affected

1038

§ 1336(a): 65 limitations imposed by the by specific tariff

1039

Stat. 72, 19 U.S.C. Commission, and a person who regulations.

1040

§ 1360( ) (1), 19 has not entered a formal (2) It should also also

1041

U.S.C.A. § 1360 appearance may not, as be noted that business

1042

(b) (1); 65 Stat. a matter of right, question data given to the

1043

74, 19 U.S.C § witnesses. Ibid. See Commission may

1044

1364(a), 19 U.S.C.A. also Norwegian Nitrogen be classified as

1045

§ 1364(a); 49 Products Co. v. United confidential, 19

1046

Stat. 774, 7 States, 288 U.S. 294. CFR § 201.6,

1047

U.S.C. § 53 S.Ct. 350, 77 and that confidential

1048

624(a), 7 L.Ed. 796. material contained

1049

U.S.C.A. § 624(a). in applications for

1050

The Commission's investigation and

1051

Rules of Practice complaints will not

1052

also provide that be made available

1053

public notice of for public

1054

any pending inspection. Id.,

1055

investigation shall § 201.8.

1056

be given. 19 CFR,

1057

1960 Supp., §

201.10

Extent of agency's

Scope of agency's subpoena power in

1058

Agency investigative authority investigative

1059

proceedings

1060

production of any domestic

1061

investigation." 46

1062

article and of any like or

Stat. 699, as

1063

similar foreign article." 46 Stat.

1064

ammended, 72 Stat

701, 19 U.S.C. § 1336(a), 19

1065

679, 19 U.S.C. §

1066

U.S.C.A. § 1336(a). 1333 (a),

1067

19 U.S.C.A.

1068

(5) The Commission is authorized

1069

§ 1333(a).

1070

to investigate any complaint

1071

alleging that a person

1072

has engaged in unfair methods

1073

of competition or unfair acts in

1074

the importation of articles into

1075

the United States. 46 Stat. 703,

19 U.S.C. § 1337(a), (b), 19

1076

U.S.C.A. § 1337(a, b).

1077

(6) Before the President enters

1078

into negotiations concerning any

1079

proposed foreign trade

1080

agreement, the Commission

1081

is required to conduct an

1082

investigation and make a report

1083

to the President, indicating the

1084

type of agreement which will best

1085

carry out the purpose of the

Tariff Act. 65 Stat. 72, 19

1086

U.S.C. § 1360(a), 19 U.S.C.A.

1087

§ 1360(a).

1088

(7) The Commission is authorized

1089

to "make an investigation

1090

and make a report thereon * *

1091

to determine whether any product

1092

upon which a concession

1093

has been granted under a trade

1094

agreement is, as a result, in

1095

whole or in part, of the duty or

1096

other customs treatment

1097

reflecting such concession,

1098

being imported into the United States

1099

in such increased quantities,

1100

either actual or relative, as to

1101

cause or threaten serious injury

1102

to the domestic industry producing

1103

like or directly competitive

1104

products." 65 Stat. 74, 19 U.S.

1105

C. § 1364(a), 19 U.S.C.A.

1106

§ 1364 (a).

1107

(8) The Commission is authorized

1108

to investigate the effects

1109

of dumping, and to determine

1110

whether because of such dumping,

1111

"an industry in the United

States is being or is likely to

1112

be injured, or is prevented from

1113

being established." 42 Stat. 11,

1114

19 U.S.C. § 160(a), 19 U.S.C.A.

1115

§ 160(a).

The right, if any, of

The type of notice persons affected by

1116

required to an investigation to Miscellaneous

1117

be given in cross-examine others Comments

1118

investigative testifying at

1119

proceedings3 investigative

proceedings4

Extent of agency's

Scope of agency's subpoena power in

1120

Agency investigative authority investigative

1121

proceedings

1122

(9) Finally, the Commission is

1123

authorized to conduct

1124

investigations for the purpose

1125

of determining whether "any

1126

article or articles are being

1127

or are practically certain to be

1128

imported into the United States

1129

under such conditions and in

1130

such quantities as to render or

1131

tend to render ineffective, or

1132

materially interfere with, any

1133

program or operation undertaken

1134

under" the Agricultural

Adjustment Act or the Soil

Conservation and Domestic

Allotment Act, 49 Stat. 773, as

1135

amended, 62 Stat. 1248, 7 U.S.C.

1136

§ 624(a), 7 U.S.C.A. § 624(a).

1137

Commission To The Commission was authorized The Commission

1138

Investigate the to investigate the attack upon was authorized "to

1139

Japanese Attack Pearl Harbor in order "to issue subpenas

1140

on Hawaii. provide bases for sound requiring the

1141

decisions whether any derelictions

1142

attendance and

1143

of duty or errors of judgment on

1144

testimony of

1145

the part of the United States Army

1146

witnesses and the

1147

or Navy personnel contributed

1148

production of any

1149

to such successes as were

1150

evidence that

1151

achieved by the enemy on the

1152

relates to any

1153

occasion mentioned, and if so,

1154

matter under

1155

what these derelictions or

1156

investigation by

1157

errors were, and who were

1158

the Commission."

1159

responsible therefor." Exec.

1160

55 Stat. 854.

Order No. 8983, 6 Fed. Reg. 6569

The right, if any, of

The type of notice persons affected by

1161

required to an investigation to Miscellaneous

1162

be given in cross-examine others Comments

1163

investigative testifying at

1164

proceedings3 investigative

proceedings4

1165

Neither the Neither the Executive It is of special

1166

Executive Order Order creating the interest that the

1167

creating the Commission, Exec. Order No. Commission was

1168

Commission, Exec. 8983, 6 Fed. Reg. 6569, charged with the

1169

Order No. 8983, nor the joint resolution responsibility of

1170

6 Fed. Reg. 6569, conferring the subpoena determining whether

1171

nor the joint power upon the Commission, the successful attack

1172

resolution 55 Stat. 853, made upon Pearl Harbor

1173

conferring the any mention of resulted

1174

subpoena power upon the right to from any

1175

the Commission, cross-examine individual

1176

55 Stat. 853, witnesses. derelictions

1177

required the An examination of the of duty.

1178

Commission to Commission's proceedings Yet, even

1179

inform prospective does not disclose instances though the

1180

witnesses of wherein any witness or Commission's

1181

complaints party to the investigation

1182

lodged against investigation had all the

1183

them. was given the right to earmarks of

1184

cross-examine other. an adjudication,

1185

witnesses. none of the

In fact, such interested

1186

procedural

1187

parties as Admiral Kimmel

1188

safeguards

1189

and General Short, the demanded

1190

the Navy and Army by the respondents

1191

commanders at Pearl in these

Harbor, were not even cases were

1192

present at the hearings

1193

provided.

1194

when other witnesses

Extent of agency's

Scope of agency's subpoena power in

1195

Agency investigative authority investigative

1196

proceedings

1197

Temporary The Committee was authorized The Committee was

1198

National Economic to investigate "monopoly and given the same

1199

Committee. the concentration of economic subpoena powers as

1200

power in and financial control

1201

were conferred upon

1202

over production and distribution

1203

the Securities

1204

of goods and services * * *

1205

and Exchange

1206

with a view to determining

Commission by the

1207

* * * (1) the causes of

Public Utility

1208

such concentration and

1209

Holding Company Act,

1210

control and their effect upon

49, Stat. 831, 15

1211

competition; (2) the effect of

U.S.C. § 79r(c), 15

1212

the existing price system and

1213

U.S.C.A. § 79r(c).

1214

the price policies of industry

1215

Stat. 706.

1216

upon the general level of trade,

1217

upon employment, upon long-

1218

term profits, and upon

1219

consumption, and (3) the effect of

1220

existing tax, patent, and other

Government policies upon

1221

competition, price levels,

1222

unemployment, profits, and

1223

consumption." 52 Stat. 705.

1224

Congressional The Committee was authorized The Committee was

1225

Investigating to conduct an investigation into authorized "to send

1226

Committees7 charges that William Duane, a for persons,

1227

Senate Committee newspaper editor, had published papers, and

1228

of Privileges. articles defaming the Senate. records, and

1229

(1800) Annals of Cong. 117 (1800). compel the

1230

attendance of

1231

witnesses which

1232

may become

1233

requisite for the

1234

execution of their

1235

commission." 10

Annals of Cong. 121

1236

(1800).

The right, if any, of

The type of notice persons affected by

1237

required to an investigation to Miscellaneous

1238

be given in cross-examine others Comments

1239

investigative testifying at

1240

proceedings3 investigative

proceedings4

1241

were testifying.

Hearings of the

Joint Congressional

Committee on the

Investigation

1242

of the Pearl Harbor Attack,

1243

79th Cong.,

1244

1st Sess., pts.

1245

22-25.

This was not This was not specified

1246

specified by by statute. The Rules

1247

statute. of Procedure

1248

The Rules adopted by the Committee

1249

of Procedure for the conduct of its

1250

adopted by the hearings did not refer to

1251

Committee for the cross-examination. There

1252

conduct of was merely a general

1253

its hearings statement that

1254

made no mention "(i)n all examination

1255

of the type of witnesses, the rules of

1256

of notice, if any evidence shall be observed

1257

which was to be but liberally construed."

1258

given to prospective Hearings of the Temporary

1259

witnesses. National

1260

Hearings of Economic Committee, pt. 1,

1261

the Temporary 193.

National Economic

Committee, pt. 1

193.

This was not This was not specified It should be noted

specified by the by the authorizing that this

authorizing resolution. The Senate Committee was

resolution. later rejected a motion to investigating the

However, a permit Duane "to have allegedly unlawful

subsequent assistance of counsel for conduct of a

resolution provided his defense," but allowed specific individual;

that Duane was to him to be heard through yet, it does not

be informed of the counsel "in denial of appear that he was

charges against him any facts charged against given the right to

when he presented (him) or in excuse and cross-examine

himself at the bar and extenuation of his adverse

of the Senate. 10 offence." 10 Annals of witnesses.

Annals of Cong. 117 Cong. 118, 119 (1800).

(1800).

Extent of agency's

Scope of agency's subpoena power in

Agency investigative authority investigative

proceedings

Committee of Senator Smith had been The authorizing

the Senate to accused of conspiring with Aaron resolution did not

Investigate Burr to commit treason, and indicate whether

Whether Senator the Committee was the Committee had

John Smith established to investigate the subpoena power.

of Ohio Should the charges and to inquire 17 Annals of Cong.

Retain His Seat whether Senator Smith "should 40 (1807).

in the Senate be permitted any longer

(1807). to have a seat" in the

Senate. 17 Annals of Cong.

40

(1807)

Joint Committee (1) The Committee was The Committee had

on the Conduct established "to inquire into the "the power to send

of the conduct of the present (Civil) for persons and

Civil War war." Cong. Globe, 37th papers." Cong.

(1861). Cong., 2d Sess. 32, 40 (1861). Globe, 37th Cong.,

(2) The Committee was 2d

Sess. 32, 40

also authorized (1861).

"to inquire into the

truth of the rumored slaughter

of the Union troops, after their

surrender, at the recent attack

of the rebel forces upon Fort

Pillow, Tennessee; as also,

whether Fort Pillow could have

been sufficiently reenforced or

evacuated, and, if so, why it

was not done." 13 Stat. 405.

The right, if any, of

The type of notice persons affected by

required to an investigation to Miscellaneous

be given in cross-examine others Comments

investigative testifying at

proceedings3 investigative

proceedings4

This was not This was not specified Here again, it

specified by the by the authorizing should be observed that

authorizing resolution. Before the the Committee

resolution. The Committee, Senator Smith was investigating

ommittee furnished "claimed, as a right, to the conduct of a

Senator Smith with be heard in his defense particular

a description of by counsel, to have individual, and

the charges and compulsory process for that the Committee's

evidence against witnesses, and to be findings could

him. Report of confronted with his have had

the Committee, accusers, as if severe

17

Annals of the Committee consequences on

Cong. 56 (1807). had been a circuit court that individual.

of the United States."

Report of the Committee,

17

Annals of Cong. 56 (1807)

However, the Committee

rejected these claims

on the ground that it was

not a court, but rather

a body whose function

it was to investigate

and report the facts

relating to Senator Smith's

conduct. Ibid.

This was not This was not specified It should be noted

specified by the by the authorizing that the

authorizing resolution. Many of the Committee's

resolution. Many generals whose conduct was investigation

of the generals being investigated were not frequently

whose conduct was given the right to be centered on the

being investigated assisted by counsel or allegedly derelict

were given no to cross-examine other conduct of specific

notice of the witnesses. Botterud, individuals.

charges that had The Joint Committee on the Botterud, The

been leveled Conduct of the Civil War Joint Committee

against them. (M.A. Thesis, Georgetown on the Conduct

Botterud, The University, 1949), of the Civil

Joint Committee 42. War (M.A.

on the Conduct of Thesis, Georgetown

the Civil War University, 1949), 42.

(M.A. Thesis,

Georgetown

University, 1949),42.

Extent of agency's

Scope of agency's subpoena power in

Agency investigative authority investigative

proceedings

House Committee The Committee was established The Committee had

to Investigate to investigate charges that the authority "to send

the Electric Electric Boat Company of New for persons an

Boat Company Jersey had "been engaged in papers." H. R. Res.

of New efforts to exert corrupting 288, 60th Cong.,

Jersey (1908). influence on certain Members of 1st Sess., 42 Cong.

Congress in their legislative

Rec. 2972.

capacities, and * * * (had)

in fact, exerted such corrupting

influence." H. R. Res. 288, 60th

Cong., 1st Sess., 42 Cong. Rec.

2972.

House Committee (1) The Committee was authorized The Committee was

to Investigate to conduct an investigation authorized "to

Violations "for the purpose of ascertaining compel the

of the whether or not there have been attendance of

Antitrust Laws violations of the antitrust act of witnesses, (and) to

by the American July 2, 1890, and the various send for persons

Sugar Refining acts supplementary thereto, by and papers." H. R.

Co. (1911). the American Sugar Refining Res. 157, 62d

Co.," and further, to Cong.,

1st Sess.,

"investigate the organization

47

Cong. Rec. 1143

and operations of said American

Sugar Refining Co., and its

relations with other persons or

corporations engaged in the

business of manufacturing or

refining sugar, and all

other persons or corporations

engaged in manufacturing

or refining sugar and

their relations with each

other." H. R., Res. 157, 62d

Cong., 1st Sess., 47 Cong.

Rec. 1143.

Senate The Committee was authorized The Committee was

Committee to "to make a full and complete authorized "to

Investigate investigation of all lobbying require by subpena

Lobbying activities and all efforts to or otherwise the

(1935-1936) influence, encourage, promote, attendance of such

or retard legislation, directly,

witnesses and the

or indirectly in connection with

production of such

the so-called 'holding-company

correspondence,

The right, if any, of

The type of notice persons affected by

required to an investigation to Miscellaneous

be given in cross-examine others Comments

investigative testifying at

proceedings3 investigative

proceedings4

This was not The questioning of all It is of interest

specified by the witnesses was conducted that the

authorizing by the Committee, although Committee was

resolution. the parties being investigating

However, most of investigated were specific charges

the charges which permitted to of corruption

led to the submit written leveled against

investigation were interrogatories named

made in public for the Committee individuals.

hearings before the to propound to

Rules Committee certain witnesses.

of the House. H. R. Rep. No. 1727,

H. R. Rep. No. 60th Cong.,

1168, 60th Cong. 1st Sess. 11.

1st Sess.

1262

This was not This was not specified Once again, it

1263

specified by the by the authorizing statute. should be noted

1264

authorizing The Committee's Rules of that the

1265

resolution. Nor Procedure provided that Committee

1266

was this specified "counsel may attend was established

1267

by the Committee's witnesses summoned to investigate,

1268

Rules of Procedure. before this committee, among other things,

1269

but may not possible

1270

participate in the violations of

1271

examination or argument,

1272

the law.

1273

given by the committee,

1274

from time to time,

1275

as the occasion

1276

arises." Hearings before

1277

the Special Committee on

1278

the Investigation of the

American Sugar Refining

1279

Co., 62d Cong., 1st Sess.,

1280

Vols. 1, 3.

This was not This was not specified

1281

specified by the by the authorizing

1282

authorizing resolution. resolution.

The Committee adopted a rule

1283

that witnesses and their

Extent of agency's

Scope of agency's subpoena power in

1284

Agency investigative authority investigative

1285

proceedings

1286

bill', or any other matter or

1287

books, papers, and

1288

proposal affecting legislation."

1289

documents * * * as

S. Res. 165, 74th Cong., 1st

1290

it * * * (deemed)

1291

Sess., 79 Cong. Rec. 11003.

1292

advisable." S.

Res. 165, 74th

1293

Cong., 1st Sess.,

1294

79 Cong. Rec.

11003.

The right, if any, of

The type of notice persons affected by

1295

required to an investigation to Miscellaneous

1296

be given in cross-examine others Comments

1297

investigative testifying at

1298

proceedings3 investigative

proceedings4

1299

attorneys could not examine

1300

other witnesses; however,

1301

they could submit

1302

written questions,

1303

which the Committee would

1304

consider propounding to

1305

other witnesses. Hearings

1306

before Special Senate

Committee to Investigate

Lobbying Activities, 74th

1307

Cong., 2d Sess. 1469.

1308

Mr. Justice FRANKFURTER, concurring in the result.

1309

The United States Commission on Civil Rights, in exercising powers granted to it by the Civil Rights Act of 1957 (71 Stat. 635, 42 U.S.C. § 1975c, 42 U.S.C.A. § 1975c), scheduled a hearing to be held by it in Shreveport, Louisiana, on July 13, 1959. By these two actions judgments were sought to declare the proposed hearing illegal and to restrain the members of the Commission from holding it.

1310

The rules of procedure formulated by the Commission amply rest on leave of Congress. I need add nothing on this phase of the case to the Court's opinion. While it is a most salutary doctrine of constitutional adjudication to give a statute even a strained construction to avoid facing a serious doubt of constitutionality, 'avoidance of a difficulty will not be pressed to the point of disingenuous evasion. Here the intention of the Congress is revealed too distinctly to permit us to ignore it because of mere misgivings as to power. The problem must be faced and answered.' Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 622, 77 L.Ed. 1265. I have no such misgivings in the situation before us. I also agree with the Court's conclusion in rejecting the constitutional claims of the clients. In view, however, of divergences between the Court's analysis and mine of the specific issues before us, including the authoritative relevance of In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376 and Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, 79 S.Ct. 1157, 3 L.Ed.2d 1234, I state my reasons for agreement.

1311

To conduct the Shreveport hearing on the basis of sworn allegations of wrongdoing by the plaintiffs, without submitting to them these allegations and disclosing the identities of the affiants, would, it is claimed, violate the Constitution. The issue thus raised turns exclusively on the application of the Due Process Clause of the Fifth Amendment. The Commission's hearing are not proceedings requiring a person to answer for an 'infamous crime,' which must be based on an indictment of a grand jury (Amendment V), nor are they 'criminal prosecutions' giving an accused the rights defined by Amendment VI. Since due process is the constitutional axis on which decision must turn, our concern is not with absolutes, either of governmental power or of safeguards protecting individuals. Inquiry must be directed to the validity of the adjustment between these clashing interests—that of Government and of the individual, respectively—in the procedural scheme devised by the Congress and the Commission. Whether the scheme satisfies those strivings for justice which due process guarantees, must be judged in the light of reason drawn from the considerations of fairness that reflect our traditions of legal and political thought, duly related to the public interest Congress sought to meet by this legislation as against the hazards or hardship to the individual that the Commission procedure would entail.

1312

Barring rare lapses, this Court has not unduly confined those who have the responsibility of governing within a doctrinaire conception of 'due process.' The Court has been mindful of the manifold variety and perplexity of the tasks which the Constitution has vested in the legislative and executive branches of the Government by recognizing that what is unfair in one situation may be fair in another. Compare, for instance, Den ex dem Murray v. Hoboken Land & Improvement Co., 18 How. 272, 15 L.Ed. 372, with Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938, and see Federal Communications Comm. v. WJR, 337 U.S. 265, 275, 69 S.Ct. 1097, 1103, 93 L.Ed. 1353. Whether the procedure now questioned offends 'the rudiments of fair play,' Chicago, M. & St. P.R. Co. v. Polt, 232 U.S. 165, 168, 34 S.Ct. 301, 58 L.Ed. 554, is not to be tested by loose generalities or sentiments abstractly appealing. The precise nature of the interest alleged to be adversely affected or of the freedom of action claimed to be curtailed, the manner in which this is to be done and the reasons for doing it, the balance of individual hurt and the justifying public good—these and such like are the considerations, avowed or implicit, that determine the judicial judgment when appeal is made to 'due process.'

1313

The proposed Shreveport hearing creates risks of harm to the plaintiffs. It is likewise true that, were the plaintiffs afforded the procedural rights they seek, they would have a greater opportunity to reduce these risks than will be theirs under the questioned rules of the Commission. Some charges touching the plaintiffs might be withdrawn or modified, if those making them knew that their identities and the content of their charges were to be revealed. By the safeguards they seek the plaintiffs might use the hearing as a forum for subjecting the charges against them to a scrutiny that might disprove them or, at least, establish that they are not incompatible with innocent conduct.

1314

Were the Commission exercising an accusatory function, were its duty to find that named individuals were responsible for wrongful deprivation of voting rights and to advertise such finding or to serve as part of the process of criminal prosecution, the rigorous protections relevant to criminal prosecutions might well be the controlling starting point for assessing the protection which the Commission's procedure provides. The objectives of the Commission on Civil Rights, the purpose of its creation, and its true functioning are quite otherwise. It is not charged with official judgment on individuals nor are its inquiries so directed. The purpose of its investigations is to develop facts upon which legislation may be based. As such, its investigations are directed to those concerns that are the normal impulse to legislation and the basis for it. To impose upon the Commission's investigations the safeguards appropriate to inquiries into individual blameworthiness would be to divert and frustrate its purpose. Its investigation would be turned into a forum for the litigation of individual culpability matters which are not within the keeping of the Commission, with which it is not effectively equipped to deal, and which would deflect it from the purpose for which it was within its limited life established.

1315

We would be shutting our eyes to actualities to be unmindful of the fact that it would dissuade sources of vitally relevant information from making that information known to the Commission, if the Commission were required to reveal its sources and subject them to cross-examination. This would not be a valid consideration for secrecy were the Commission charged with passing official incriminatory or even defamatory judgment on individuals. Since the Commission is merely an investigatorial arm of Congress, the narrow risk of unintended harm to the individual is outweighed by the legislative justification for permitting the Commission to be the critic and protector of the information given it. It would be wrong not to assume that the Commission will responsibly scrutinize the reliability of sworn allegations that are to serve as the basis for further investigation and that it will be rigorously vigilant to protect the fair name of those brought into question.

1316

In appraising the constitutionally permissive investigative procedure claimed to subject individuals to incrimination or defamation without adequate opportunity for de ense, a relevant distinction is between those proceedings which are preliminaries to official judgments on individuals and those, like the investigation of this Commission, charged with responsibility to gather information as a solid foundation for legislative action. Judgments by the Commission condemning or stigmatizing individuals are not called for. When official pronouncements on individuals purport to rest on evidence and investigation, it is right to demand that those so accused be given a full opportunity for their defense in such investigation, excepting, of course, grand jury investigations. The functions of that institution and its constitutional prerogatives are rooted in long centuries of Anglo-American history. On the other hand, to require the introduction of adversary contests relevant to determination of individual guilt into what is in effect a legislative investigation is bound to thwart it by turning it into a serious digression from its purpose.

1317

The cases in which this Court has recently considered claims to procedural rights in investigative inquiries alleged to deal unfairly with the reputation of individuals or to incriminate them, have made clear that the fairness of their procedures is to be judged in light of the purpose of the inquiry, and, more particularly, whether its essential objective is official judgment on individuals under scrutiny. Such a case was Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377. There the inquiry was for the purpose of determining whether the security clearance of a particular person was to be revoked. A denial of clearance would shut him off from the opportunity of access to a wide field of employment. The Court concluded that serious constitutional questions were raised by denial of the rights to confront accusatory witnesses and to have access to unfavorable reports on the basis of which the very livelihood of an individual would be gravely jeopardized. Again, Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817, presented a contrasting situation to the one before us. The Government there sought through the Attorney General to designate organizations as 'Communist,' thus furnishing grounds on which to discharge their members from government employment. No notice was given of the charges against the organizations nor were they given an opportunity to establish the innocence of their aims and acts. It was well within the realities to say of what was under scrutiny in Joint Anti-Fascist Refugee Committee v. McGrath that 'It would be blindness * * * not be recognize that in the conditions of our time such designation drastically restricts the organizations, if it does not proscribe them.' 341 U.S. at page 161, 71 S.Ct. at page 643 (concurring opinion). And the procedure which was found constitutionally wanting in that case could be fairly characterized as action 'to maim or decapitate, on the mere say-so of the Attorney General, an organization to all outward-seeming engaged in lawful objectives * * *.' Ibid. Nothing like such characterization can remotely be made regarding the procedure for the proposed inquiry of the Commission on Civil Rights.

1318

Contrariwise, decisions arising under the Due Process Clause of the Fourteenth Amendment strongly support the constitutionality of what is here challenged, where the purposes were as here truly investigatorial. Thus, In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376, sustained inquiry by the Ohio State Fire Marshal into the causes of a fire while excluding counsel of subpoenaed witnesses on whose premises the fire occurred. The Court so held even though the Fire Marshal had authority, after questioning a witness, to arrest him if he believed there was sufficient evidence to charge him with arson. The guiding consideration was that, although suspects might be discovered, the essential purpose of the Fire Marshal's inquiry was not to adjudicate individual responsibility for the fire but to purs e a legislative policy of fire prevention through the discovery of the origins of fires. This decision was applied in Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, at page 288, 79 S.Ct. 1157, at page 1158, 3 L.Ed.2d 1234, which concerned 'a state judicial Inquiry into alleged improper practices at the local bar'. Rejecting the claim based on the consideration that the inquiry might serve as a groundwork for the prosecution of witnesses called before it, the Court applied Groban because the inquiry was a general one and appellants were before it not as potential accused but 'solely as witnesses.' The proposed investigation of the Commission on Civil Rights is much less likely to result in prosecution of witnesses before it than were the investigations in Groban and Baker. Just as surely, there is not present in the cases now before us a drastic official judgment, as in Greene and Joint Anti-Fascist Refugee Committee, where the Court deemed it necessary to insure that full opportunity for defense be accorded to individuals who were the specific, adverse targets of the secret process.

1319

Moreover, the limited, investigatorial scope of the challenged hearing is carefully hedged in with protections for the plaintiffs. They will have the right to be accompanied by counsel. The rules insure that they will be made aware of the subject of the hearings. They will have the right to appeal to the Commission's power to subpoena additional witnesses. The rules significantly direct the Commission to abstain from public exposure by taking in executive session any evidence or testimony tending 'to defame, degrade, or incriminate any person.' A person so affected is given the right to read such evidence and to reply to it. These detailed provisions are obviously designed as safeguards against injury to persons who appear in public hearings before the Commission. The provision for screening defamatory and incriminatory testimony in order to keep it from the public may well be contrasted with the procedure in the Joint Anti-Fascist case, where the very purpose of the inquiry was to make an official judgment that certain organizations were 'Communist.' Such condemnation of an organization would of course taint its members. The rules of the Commission manifest a sense of its responsibility in carrying out the limited investigatorial task confided to it. It is not a constitutional requirement that the Commission be argumentatively turned into a forum for trial of the truth of particular allegations of denial of voting rights in order thereby to invalidate its functioning. Such an inadmissible transformation of the Commission's function is in essence what is involved in the claims of the plaintiffs. Congress has entrusted the Commission with a very different role—that of investigating and appraising general conditions and reporting them to Congress so as to inform the legislative judgment. Resort to a legislative commission as a vehicle for proposing well-founded legislation and recommending its passage to Congress has ample precedent.

1320

Finally it should be noted that arguments directed either at the assumed novelty of employing the Commission in the area of legislative interest which led Congress to its establishment, or at the fact that the source of the Commission's procedures were those long used by Committees of Congress, are not particularly relevant. History may satisfy constitutionality, but constitutionality need not produce the title deeds of history. Mere age may establish due process, but due process does not preclude new ends of government or new means for achieving them. Since the Commission has, within its legislative framework, provided procedural safeguards appropriate to its proper function, claims of unfairness offending due process fall. The proposed Shreveport hearing fully comports with the Constitution and the law. Accordingly I join the judgment of the Court in reversing the District Court.

1321

Mr. Justice HARLAN, whom Mr. Justice CLARK joins, concurring.

1322

In joining the Court's opinion, as I do, I desire to add that in my view the principles established by In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376, and Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, 79 S.Ct. 1157, 3 L.Ed.2d 1234, are dispositive of the issues herein in the Commission's favor.

1323

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concu s, dissenting.

1324

With great deference to my Brethren I dissent from a reversal of these judgments.

1325

The cause which the majority opinion serves is, on the surface, one which a person dedicated to constitutional principles could not question. At the bottom of this controversy is the right to vote protected by the Fifteenth Amendment. That Amendment withholds power from either the States or the United States to deny or abridge the right to vote 'on account of race, color, or previous condition of servitude.' This right stands beyond the reach of government. Only voting qualifications that conform to the standards proscribed by the Fifteenth Amendment may be prescribed. See Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072. As stated in Terry v. Adams, 345 U.S. 461, 468, 73 S.Ct. 809, 813, 97 L.Ed. 1152, 'The Amendment, the congressional enactment and the cases make explicit the rule against racial discrimination in the conduct of elections.' By democratic values this right is fundamental, for the very existence of government dedicated to the concept 'of the people, by the people, for the people,' to use Lincoln's words, depends on the franchise.

1326

Yet important as these civil rights are, it will not do to sacrifice other civil rights in order to protect them. We live and work under a Constitution. The temptation of many men of goodwill is to cut corners, take short cuts, and reach the desired end regardless of the means. Worthy as I think the ends are which the Civil Rights Commission advances in these cases, I think the particular means used are unconstitutional.

1327

The Commission, created by Congress, is a part of 'the executive branch' of the Government, 71 Stat. 634, 42 U.S.C. § 1975(a), 42 U.S.C.A. § 1975(a), whose members are appointed by the President and confirmed by the Senate. § 1975(a). It is given broad powers of investigation with the view of making a report with 'findings and recommendations' to the Congress. § 1975c. It is empowered, among other things, to

1328

'investigate allegations in writing under oath or affirmation that certain citizens of the United States are being deprived of their right to vote and have that vote counted by reason of their color, race, religion, or national origin; which writing, under oath or affirmation, shall set forth the facts upon which such belief or beliefs are based.' § 1975c(a)(1).

1329

Complaints have been filed with the Commission charging respondents, who are registrars of voters in Louisiana, with depriving persons of their voting rights by reason of their color. If these charges are true and if the registrars acted willfully (see Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495), the registrars are criminally responsible under a federal statute which subjects to fine and imprisonment1 anyone who willfully deprives a citizen of any right under the Constitution 'by reason of his color, or race.'2 18 U.S.C. § 242, 18 U.S.C.A. § 242.

1330

The investigation and hearing by the Commission are therefore necessarily aimed at determining if this criminal law has been violated. The serious and incriminating nature of the charge and the disclosure of facts concerning it are recognized by the Congress, for the Act requires certain protective procedures to be adopted where defamatory, degrading, or incriminating evidence may be adduced.

1331

'If the Commission etermines that evidence or testimony at any hearing may tend to defame, degrade, or incriminate any person, it shall (1) receive such evidence or testimony in executive session; (2) afford such person an opportunity voluntarily to appear as a witness; and (3) receive and dispose of requests from such person to subpena additional witnesses.' 42 U.S.C. § 1975a(e), 42 U.S.C.A. § 1975a(e).

1332

Yet these safeguards, given as a matter of grace, do not in my judgment dispose of the constitutional difficulty. First, it is the Commission's judgment, not the suspect's, that determines whether the hearing shall be secret or public. Thus this procedure has one of the evils protested against in In re Groban, 352 U.S. 330, 337, 348—353, 77 S.Ct. 510, 515, 521—524, 1 L.Ed.2d 376 (dissenting opinion). The secrecy of the inquisition only underlines its inherent vices: 'Secret inquisitions are dangerous things justly feared by free men everywhere. They are the breeding place for arbitrary misuse of official power. They are often the beginning of tyranny as well as indispensable instruments for its survival. Modern as well as ancient history bears witness that both innocent and guilty have been seized by officers of the state and whisked away for secret interrogation or worse until the groundwork has been securely laid for their inevitable conviction.' Id., 352 U.S. at pages 352—353, 77 S.Ct. at page 523. As said in dissent in Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, 299, 79 S.Ct. 1157, 1164, 3 L.Ed.2d 1234, 'secretly compelled testimony does not lose its highly dangerous potentialities merely because' it is taken in preliminary proceedings. Second, the procedure seems to me patently unconstitutional whether the hearing is public or secret. Under the Commission's rules the accused is deprived of the right to notice of the charges against him and the opportunity of cross-examination. This statutory provision, fashioned to protect witnesses as such rather than a prospective defendant, permits the Commission to exclude the accused entirely from the hearing and deny him the opportunity even to observe the testimony of his accusers. And even if the Commission were inclined in a particular case to protect the accused from the opprobrium likely to flow from the testimony of individual witnesses against him by holding secret sessions, this would be little comfort after the Commission's findings, based on such untested evidence, were publicized across the Nation.

1333

I assume that no court would be justified in enjoining a Congressional Committee composed of Senators or Congressmen that engaged in this kind of conduct. This is not that kind of a committee. Moreover, even if it were and if private rights were infringed by reason of the Committee's violations of the Constitution, there are circumstances when redress can be had in the courts. Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377. Cf. Greenfield v. Russel, 292 Ill. 392, 127 N.E. 103, 9 A.L.R. 1334; Opinion of the Justices, 96 N.H. 530, 73 A.2d 433. The judiciary also becomes implicated when the Congress asks the courts to back up what its Committees have done; or when a victim of an investigation asks relief from punishment imposed on him. Then the procedural safeguards of the Bill of Rights come into full play. See Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273.

1334

The Civil Rights Commission, however, is not a Congressional Committee of Senators or Congressmen; nor is it an arm of Congress. It is an arm of the Executive. There is, in my view, only one way the Chief Executive may move against a person accused of a crime and deny him the right of confrontation and cross-examination and that is by the grand jury.

1335

The grand jury is the accusatory body in federal law as provided by the Fifth Amendment. The essence of the institution of the grand jury was stated by 1 Stephen, History of Criminal Law of England, 252: 'The body of the country are the accusers.' Thomas Erskine stated the matter ac urately and eloquently in Jones v. Shipley 21 How.St.Tr. 847, 977.

1336

'(I)t is unnecessary to remind your lordships, that, in a civil case, the party who conceives himself aggrieved, states his complaint to the court,—avails himself at his own pleasure of its process,—compels an answer from the defendant by its authority,—or taking the charge pro confesso against him on his default, is entitled to final judgment and execution for his debt, without any interposition of a jury. But in criminal cases it is otherwise; the court has no cognizance of them, without leave from the people forming a grand inquest. If a man were to commit a capital offense in the face of all the judges of England, their united authority could not put him upon his trial:—they could file no complaint against him, even upon the records of the supreme criminal court, but could only commit him for safe custody, which is equally competent to every common justice of the peace:—the grand jury alone could arraign him, and in their discretion might likewise finally discharge him, by throwing out the bill, with the names of all your lordships as witnesses on the back of it. If it shall be said, that this exclusive power of the grand jury does not extend to lesser misdemeanors, which may be prosecuted by information; I answer, that for that very reason it becomes doubly necessary to preserve the power of the other jury which is left.'

1337

This idea, though uttered in 1783, is modern and relevant here. The grand jury brings suspects before neighbors, not strangers. Just recently in Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252, we said, 'The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.'

1338

This Commission has no such guarantee of fairness. Its members are not drawn from the neighborhood. The members cannot be as independent as grand juries because they meet not for one occasion only; they do a continuing job for the executive and, if history is a guide, tend to acquire a vested interest in that role.

1339

The grand jury, adopted as a safeguard against 'hasty, malicious, and oppressive' action by the Federal Government, Ex parte Bain, 121 U.S. 1, 12, 7 S.Ct. 781, 787, 30 L.Ed. 849, stands as an important safeguard to the citizen against open and public accusations of crime. Today the grand jury may act on its own volition, though originally specific charges by private prosecutors were the basis of its action. Hale v. Henkel, 201 U.S. 43, 59—60, 26 S.Ct. 370, 372—373, 50 L.Ed. 652. It has broad investigational powers to look into what may be offensive against federal criminal law. United States v. Johnson, 319 U.S. 503, 510, 63 S.Ct. 1233, 1237, 87 L.Ed. 1546. An indictment returned by a grand jury may not be challenged because it rests wholly on hearsay. Costello v. United States, 350 U.S. 359, 361—362, 76 S.Ct. 406, 407—408, 100 L.Ed. 397. An accused is not entitled to a hearing before a grand jury, nor to present evidence, nor to be represented by counsel; and a grand jury may act secretly—a procedure normally abhorrent to due process. In this country as in England of old, the grand jury is convened as a body of laymen, free from technical rules, acting in secret, pledged in indict no one because of prejudice and to free no one because of special favor. Costello v. United States, supra, 350 U.S. at page 362, 76 S.Ct. at page 408.

1340

Grand juries have their defects. They do not always return a true bill, for while the prejudices of the community may radiate through them, they also have the saving quality of being familiar with the people involved. They are the only accusatory body in the Federal Government that is recognized by the Constitution. I would allow no other engine of government, either executive or legislative, to take their place—at least when the right of confrontation and cross-examinat on are denied the accused as is done in these cases.

1341

The might and power of the Federal Government have no equal. When its guns are leveled at a citizen on charges that he committed a federal crime, it is for me no answer to say that the only purpose is to report his activities to the President and Congress, not to turn him over to the District Attorney for prosecution. Our Constitution was drawn on the theory that there are certain things government may not do to the citizen and that there are other things that may be done only in a specific manner. The relationship of the Federal Government to a man charged with crime is carefully defined. Its power may be marshalled against him, but only in a defined way. When we allow this substitute method, we make an innovation that does not comport with that due process which the Fifth Amendment requires of the Federal Government. When the Federal Government prepares to inquire into charges that a person has violated federal law, the Fifth Amendment tells us how it can proceed.

1342

The Civil Rights Commission, it is true, returns no indictment. Yet in a real sense the hearings on charges that a registrar has committed a federal offense are a trial. Moreover, these hearings before the Commission may be televised or broadcast on the radio.3 In our day we have seen Congressional Committees probing into alleged criminal conduct of witnesses appearing on the television screen. This is in reality a trial in which the whole Nation sits as a jury. Their verdict does not send men to prison. But it often condemns men or produces evidence to convict and even saturates the Nation with prejudice against an accused so that a fair trial may be impossible. As stated in 37 A.B.A.J. 392 (1951), 'If several million television viewers see and hear a politician, a businessman or a movie actor subjected to searching interrogation, without ever having an opportunity to cross-examine his accusers or offer evidence in his own support, that man will stand convicted, or at least seriously compromised, in the public mind, whatever the later formal findings may be.' The use of this procedure puts in jeopardy our traditional concept of the way men should be tried and replaces it with 'a new concept of guilt based on inquisitorial devices.' Note, 26 Temp.L.Q. 70, 73.

1343

Yet whether the hearing is televised or not it will have all the evils of a legislative trial. 'The legislative trial,' wrote Alan Barth in Government by Investigation (1955) p. 81, 'is a device for condemning men without the formalities of due process.' And he went on to say:

1344

'The legislative trial serves three distinct though related purposes: (1) it can be used to punish conduct which is not criminal; (2) it can be used to punish supposedly criminal conduct in the absence of evidence requisite to conviction in a court of law; and (3) it can be used to drive or trap persons suspected of 'disloyalty' into committing some collateral crime such as perjury or contempt of Congress, which can then be subjected to punishment through a judicial proceeding. 'It is hard to get them for their criminal activities in connection with espionage, but a way has been found,' Senator McCarthy once remarked. 'We are getting them for perjury and putting some of the worst of them away. For that reason I hope every witness who comes here is put under oath and his testimony is gone over with a fine-tooth comb, and if we annot convict some of them for their disloyal activities, perhaps we can convict some of them for perjury.' That they may have been guilty of no violation of law in the first place seems of no concern to the Senator.' Id., at 83. And see Telford Taylor, Grand Inquest (1955).

1345

Barth wrote of hearings in the so-called loyalty cases. But the reasons apply to any hearing where a person's job or liberty or reputation is at stake. Barth wrote of hearings held by Congressional Committees. Yet the evil is compounded where the 'legislative trial' has become a 'Commission trial.' And while I assume that a court would not enjoin the typical Congressional Committee, it is duty bound to keep commissions within limits, when its jurisdiction is properly invoked.

1346

The right to know the claims asserted against one and to contest them—to be heard—to conduct a cross-examination—these are all implicit in our concept of 'a full and fair hearing' before any administrative agency, as the Court in Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 999, 82 L.Ed. 1129, emphasized. We spoke there in the context of civil litigation where property was at stake. Here the need for all the protective devices of a fair hearing is greater. For one's job and perhaps his liberty are hinged on these hearings.

1347

We spoke in the tradition of the Morgan case only recently in Greene v. McElroy, 360 U.S. 474, 496—497, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377.

1348

'Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose momory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment which provides that in all criminal cases the accused shall enjoy the right 'to be confronted with the witnesses against him.' This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, * * * but also in all types of cases where administrative and regulatory actions were under scrutiny.' (Italics added.)

1349

We spoke there in a context where men were being deprived of their jobs as a result of investigations into their loyalty. Certainly no less is required if hearings are to be held on charges that a person has violated a federal law.

1350

Respondents ask no more than the right to known the charges, to be confronted with the accuser, and to cross-examine him. Absent these rights, they ask for an injunction. In the Greene case we said these rights were available 'where governmental action seriously injures an individual.' 360 U.S., at page 496, 79 S.Ct. at page 1413. Injury is plain and obvious here—injury of a nature far more serious than merely losing one's job, as was the situation in the Greene case. If the hearings are to be without the safeguards which due process requires of all trials—civil and criminal—there is only one way I know by which the Federal Government may proceed and that is by grand jury. If these trials before the Commission are to be held on charges that these respondents are criminals, the least we can do is to allow them to know what they are being tried for, and to confront their accusers and to cross-examine them.4 This protection would be extended to them in any preliminary hearing, even in one before a United States Commissioner.5 Confrontation and cross-examination are so basic to our concept of due process (Peters v. Hobby, 349 U.S. 31, 351—352, 75 S.Ct. 790, 800—801, 99 L.Ed. 1129 (concurring opinion)) that no proceeding by an administrative agency is a fair one that denies these rights.

1351

References are made to federal statutes governing numerous administrative agencies such as the Federal Trade Commission and the Securities and Exchange Commission; and the inference is that what is done in this case can be done there. This comes as a surprise to one who for some years was engaged in those administrative investigations. No effort was ever made, so far as I am aware, to compel a person, charged with violating a federal law, to run the gantlet of a hearing over his objection. No objection based either on the ground now advanced nor on the Fifth Amendment was, so far as I know, ever overruled. Investigations were made; and they were searching. Such evidence of law violations as was obtained was turned over to the Department of Justice. But never before, I believe, has a federal executive agency attempted, over the objections of an accused, to force him through a hearing to determine whether he has violated a federal law. If it did, the action was lawless and courts should have granted relief.

1352

What we do today is to allow under the head of due process a fragmentation of proceedings against accused people that seems to me to be foreign to our system. No indictment is returned, no commitment to jail is made, no formal criminal charges are made. Hence the procedure is condoned as violating no constitutional guarantee. Yet what is done is another short cut used more and more these days to 'try' men in ways not envisaged by the Constitution. The result is as damaging as summoning before committees men who it is known will invoke the Fifth Amendment and pillorying them for asserting their constitutional rights. This case—like the others—is a device to expose people as suspects or criminals. The concept of due process which permits the invention and use of prosecutorial devices not included in the Constitution makes due process reflect the subjective or even whimsical notions of a majority of this Court as from time to time constituted. Due process under the prevailing doctrine is what the judges say it is; and it differs from judge to judge, from court to court. This notion of due process makes it a tool of the activists who respond to their own visceral reactions in deciding what is fair, decent, or reasonable. This elastic concept of due process is described in the concurring opinion as follows:

1353

'Whether the scheme satisfies those strivings for justice which due process guarantees, must be judged in the light of reason drawn from the considerations of fairness that reflect our traditions of legal and political thought, duly related to the public interest Congress sought to meet by this legisla ion as against the hazards or hardship to the individual that the Commission procedure would entail.'

1354

When we turn to the cases, personal preference, not reason, seems, however, to be controlling.

1355

Illustrative are the First Amendment protection given to the activities of a classroom teacher by the Due Process Clause of the Fourteenth Amendment in Sweezy v. State of New Hampshire, 354 U.S. 234, 255, 261—263, 77 S.Ct. 1203, 1214, 1217—1218, 1 L.Ed.2d 1311 (concurring opinion), but denied to the leader of an organization holding discussion groups at a summer camp in Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090; the decisions that due process was violated by the use of evidence obtained by the forceful use of a stomach pump in Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, but not when evidence was used which was obtained by taking the blood of an unconscious prisoner. Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448.

1356

It is said in defense of this chameleonlike due process that it is not 'an exercise of whim or will,' that it is 'founded on something much deeper and more justifiable than personal preference. As far as it lies within human limitations, it must be an impersonal judgment. It must rest on fundamental presuppositions rooted in history to which widespread acceptance may fairly be attributed.' Sweezy v. State of New Hampshire, supra, 354 U.S. at page 267, 77 S.Ct. at page 1220 (concurring opinion). Yet one who tries to rationalize the cases on cold logic or reason fails. The answer turns on the personal predilections of the judge; and the louder the denial the more evident it is that emotion rather than reason dictates the answer. This is a serious price to pay for adopting a free-wheeling concept of due process, rather than confining it to the procedures and devices enumerated in the Constitution itself. As said in Adamson v. People of State of California, 332 U.S. 46, 68, 89, 67 S.Ct. 1672, 1695, 91 L.Ed. 1903 (dissenting opinion):

1357

'In my judgment the people of no nation can lose their liberty so long as a Bill of Rights like ours survives and its basic purposes are conscientiously interpreted, enforced and respected so as to afford continuous protection against old, as well as new, devices and practices which might thwart those purposes. I fear to see the consequences of the Court's practice of substituting its own concepts of decency and fundamental justice for the language of the Bill of Rights as its point of departure in interpreting and enforcing that Bill of Rights.'

1358

That was written concerning the meaning of the Due Process Clause of the Fourteenth Amendment. But it has equal vitality when applied to the Due Process Clause of the Fifth Amendment with which we are now concerned.

1359

I think due process is described in the Constitution and limited and circumscribed by it. The Constitution is explicit as respects permissible accusatory process that the Executive can employ against the citizen. Men of goodwill, not evil ones only, invent, under feelings of urgency, new and different procedures that have an awful effect on the citizen. The new accusatory procedure survives if a transient majority of the Court are persuaded that the device is fair or decent. My view of the Constitution confines judges—as well as the lawmakers and the Executive—to the procedures expressed in the Constitution. We look to the Constitution—not to the personal predilections of the judges—to see what is permissible. Since summoning an accused by the Government to explain or justify his conduct, that is charged as a crime, may be done only in one way, I would require a constitutional amendment before it can be done in a different way.

1360

The alternate path which we take today leads to trial of separate essential parts of criminal prosecutions by commissions, by executive agencies, by legislative committees. Farming out pieces of trials to investigative agencies is fragmentizing the kind of trial the Constitution authorizes. It prejudices the ultimate trial itself; and it puts in the hands of officials the awesome power which the Framers entrusted only to judges, grand jurors and petit jurors drawn from the community where the accused lives. It leads to government by inquisition.

1361

The Civil Rights Commission can hold all the hearings it desires; it can adduce testimony from as many people as it likes; it can search the records and archives for such information it needs to make an informed report to Congress. See United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401; Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614. But when it summons a person, accused under affidavit of having violated the federal election law, to see if the charge is true, it acts in lieu either of a grand jury or of a committing magistrate. The sifting of criminal charges against people is for the grand jury or for judges or magistrates and for them alone under our Constitution. In my view no other accusatory body can be used that withholds the rights of confrontation and cross-examination from those accused of federal crimes.

1362

I would affirm these judgments.

1

Although the Civil Rights Act of 1957 provided that the Commission should cease to exist within two years after its creation, 71 Stat. 635, 42 U.S.C. § 1975c, 42 U.S.C.A. § 1975c, in 1959 Congress extended the Commission's life for an additional two years. 73 Stat. 724.

2

The appellants in No. 549 and the petitioners in No. 550 are the individual members of the Civil Rights Commission. Hereinafter, they will be referred to as 'the Commission.' The appellees in No. 549 and the respondents in No. 550 will both hereinafter be referred to as 'respondents.'

3

Because No. 549 was heard and decided by a three-judge District Court, a direct appeal to this Court was sought by the Commission pursuant to 28 U.S.C. § 1253, 28 U.S.C.A. § 1253. The Commission also filed an appeal in No. 550 with the United States Court of Appeals for the Fifth Circuit. However, before the Court of Appeals could render a decision in No. 550, the Commission filed a petition for certiorari pursuant to Rule 20 of this Court, 28 U.S.C.A.

4

Section 104 of the Civil Rights Act of 1957, 71 Stat. 635, 42 U.S.C. § 1975c(a)(1), 42 U.S.C.A. § 1975c(a)(1).

5

Section 105(f) of the Civil Rights Act authorizes the Commission to hold hearings and to subpoena witnesses. That section provides:

'(f) Hearings; issuance of subpenas.

'The Commission, or on the authorization of the Commission any subcommittee of two of more members, at least one of whom shall be of each major political party, may, for the purpose of carrying out the provisions of this Act, hold such hearings and act at such times and places as the Commission or such authorized subcommittee may deem advisable. Subpenas for the attendance and testimony of witnesses or the production of written or other matter may be issued in accordance with the rules of the Commission as contained in section 1975a(j) and (k) of this title, over the signature of the Chairman of the Commission or of such subcommittee, and may be served by any person designated by such Chairman.' 71 Stat. 636, 42 U.S.C. § 1975d(f), 42 U.S.C.A. § 1975d(f).

6

The role of private citizens in depriving Negroes of their right to vote was one of the questions involved in United States v. McElveen, D.C.E.D.L.a., 180 F.Supp. 10, affirmed as to defendant Thomas, United States v. Thomas, 362 U.S. 58, 80 S.Ct. 612, 4 L.Ed.2d 535.

7

Rule 3(i) of the Commission's Rules of Procedure, adopted on July 1, 1958, prohibits witnesses or their counsel from cross-examining other witnesses. That Rule reads:

'Interrogation of witnesses at hearings shall be conducted only by members of the Commission or by authorized staff personnel.'

8

The full text of Section 102(h) of the Civil Rights Act reads as follows:

'(h) Submission of written statements.

'In the discretion of the Commission, witnesses may submit brief and pertinent sworn statements in writing for inclusion in the record. The Commission is the sole judge of the pertinency of testimony and evidence adduced at its hearings.' 71 Stat. 634, 42 U.S.C. § 1975a(h), 42 U.S.C.A. § 1975a(h).

9

Under the Civil Rights Act, the Commission not only has the power to issue subpoenas under Section 105(f), but, as is customary when Congress confers the subpoena power on an investigative agency, the Commission is also authorized to enforce its subpoenas by enlisting the aid of the federal courts. 71 Stat. 636, 42 U.S.C. § 1975d(g), 42 U.S.C.A. § 1975d(g).

10

Judge Wisdom, who dissented, was of the opinion that the procedures adopted by the Commission were authorized by Congress, and that those precedures were also constitutional. 177 F.Supp., at page 828.

11

The court's injunction reads as follows:

'For reasons assigned in the Court's written opinion of October 6, 1959,

'It is ordered, adjudged and decreed that defendants and their agents, servants, employees and attorneys are enjoined and restrained from conducting the proposed hearing in Shreveport, Louisiana, wherein plaintiff registrars, accused of depriving others of the right to vote, would be denied the right of apprisal, confrontation and cross examination.

'This injunction does not prohibit all hearings pursuant to Public Law 85—315, 85th Congress, 42 U.S.C.A. § 1975 et seq., but only those hearings proposed to be held in the Western District of Louisiana wherein the accused are denied the right of apprisal, confrontation and cross examination.

'Thus done and signed in Chambers on this the 9 day of November, 1959.'

The breadth of this injunction is indicated by the fact that the Commission is not only prohibited from compelling respondents' appearance at the hearing, but it is also enjoined from conducting any hearing in the Western District of Louisiana under existing rules of procedure, whether or note the respondents are called as witnesses.

12

The complete text of Section 102 reads as follows:

§ 1975a. Rules of procedure.

'(a) Opening statement.

'The Chairman or one designated by him to act as Chairman at a hearing of the Commission shall announce in an opening statement the subject of the hearing.

'(b) Copy of rules.

'A copy of the Commission's rules shall be made available to the witness before the Commission.

'(c) Attendance of counsel.

'Witnesses at the hearings may be accompanied by their own counsel for the purpose of advising them concerning their constitutional rights.

'(d) Censure and exclusion of counsel.

'The Chairman or Acting Chairman may punish breaches of order and decorum and unprofessional ethics on the part of counsel, by censure and exclusion from the hearings.

'(e) Defamatory, degrading or incriminating evidence.

'If the Commission determines that evidence or testimony at any hearing may tend to defame, degrade, or incriminate any person, it shall (1) receive such evidence or testimony in executive session; (2) afford such person an opportunity voluntarily to appear as a witness; and (3) receive and dispose of requests from such person to subpena additional witnesses.

'(f) Requests for additional witnesses.

'Except as provided in this section and section 1975d(f) of this title, the Chairman shall receive and the Commission shall dispose

of requests to subpena additional witnesses.

'(g) Release of evidence taken in executive session.

'No evidence or testimony taken in executive session may be released or used in public sessions without the consent of the Commission. Whoever releases or uses in public without the consent of the Commission evidence or testimony taken in executive session shall be fined not more than $1,000, or imprisoned for not more than one year.

'(h) Submission of written statements.

'In the discretion of the Commission, witnesses may submit brief and pertinent sworn statements in writing for inclusion in the record. The Commission is the sole judge of the pertinency of testimony and evidence adduced at its hearings.

'(i) Transcripts.

'Upon payment of the cost therefore, a witness may obtain a transcript copy of his testimony given at a public session or, if given at an executive session, when authorized by the Commission.

'(j) Witness fees.

'A witness attending any session of the Commission shall receive $4 for each day's attendance and for the time necessarily occupied in going to and returning from the same, and 8 cents per mile for going from and returning to his place of residence. Witnesses who attend at points so far removed from this respective residences as to prohibit return thereto from day to day shall be entitled to an additional allowance of $12 per day for expenses of subsistence, including the time necessarily occupied in going to and returning from the place of attendance. Mileage payments shall be tendered to the witness upon service of a subpena issued on behalf of the Commission or any subcommittee thereof.

'(k) Restriction on issuance of subpena.

'The Commission shall not issue any subpena for the attendance and testimony of witnesses or for the production of written or other

matter which would require the presence of the party subpenaed at a hearing to be held outside of the State, wherein the witness is found or resides or transacts business.' 71 Stat. 634, 42 U.S.C. § 1975a, 42 U.S.C.A. § 1975a.

In addition to the procedural safeguards provided by Section 102 of the Act, the Commission's Rules of Procedure grant additional protection. Thus, Rule 3(f) of the Commission's Rules of Procedure provides:

'(f) An accurate transcript shall be made of the testimony of all witnesses in all hearings, either public or executive sessions, of the Commission or of any subcommittee thereof. Each witness shall have the right to inspect the record of his own testimony. A transcript copy of his testimony may be purchased by a witness pursuant to Rule 2(i) above. Transcript copies of public sessions may be obtained by the public upon payment of the cost thereof.'

And Rule 3(j) provides:

'(j) If the Commission pursuant to Rule 2(e), or any subcommittee thereof, determines that evidence or testimony at any hearing may tend to defame, degrade, or incriminate any person, it shall advise such person that such evidence has been given and it shall afford such person an opportunity to read the pertinent testimony and to appear as a voluntary witness or to file a sworn statement in his behalf.'

13

The amendments, introduced by Representative Dies, read, in pertinent part, as follows:

"(q) A person shall be considered to be adversely affected by evidence or testimony of a witness if the Commission determines that: (i) the evidence or testimony would constitute libel or slander if not presented before the Commission or (ii) the evidence or testimony alleges crime or misconduct or tends to disgrace or otherwise to expose the person to public contempt, hatred, or scorn.

"(r) Insofar as practicable, any person whose activities are the subject of investigation by the Commission, or about whom adverse information is proposed to be presented at a public hearing of the Commission, shall be fully advised by the Commission as to the matters into which the Commission proposes to inquire and the adverse material which is proposed to be presented. Insofar as practicable, all material reflecting adversely on the character or reputation of any individual which is proposed to be presented at a public hearing of the Commission shall be first reviewed in executive session to determine its reliability and probative value and shall not be presented at a public hearing except pursuant to majority vote of the Commission.

"(s) If a person is adversely affected by evidence or testimony given in a public hearing, that person shall have the right: (i) to appear and testify or file a sworn statement in his own behalf, (ii) to have the adverse witness recalled upon application made within thirty days after introduction of such evidence or determination of the adverse witness' testimony, (iii) to be represented by counsel as heretofore provided, (iv) to cross-examine (in person or by counsel) such adverse witness, and (v) subject to the discretion of the Commission, to obtain the issuance by the Commission of subpenas for witnesses, documents, and other evidence in his defense. Such opportunity for rebuttal shall be afforded promptly and, so

far as practicable, such hearing shall be conducted at the same place and under the same circumstances as the hearing at which adverse testimony was presented.

"Cross-examination shall be limited to one hour for each witness, unless the Commission by majority vote extends the time for each witness or group of witnesses.

"(t) If a person is adversely affected by evidence or testimony given in executive session or by material in the Commission files or records, and if public release of such evidence, testimony, or material is contemplated such person shall have, prior to the public release of such evidence or testimony or material or any disclosure of or comment upon it by members of the Commission or Commission staff or taking of similar evidence or testimony in a public hearing, the rights heretofore conferred and the right to inspect at least as much of the evidence or testimony of the adverse witness or material as will be made public or the subject of a public hearing.

"(u) Any witness (except a member of the press who testifies in his professional capacity) who gives testimony before the Commission in an open hearing which reflects adversely on the character or reputation of another person may be required by the Commission to disclose his sources of information, unless to do so would endanger the national security." 102 Cong.Rec. 13542—13543.

14

The complete text of the House 'fair play' rules may be found in H.Res. 151, 84th Cong., 1st Sess.

15

That Congress focused upon the issues here involved and recognized the distinctions between H.R. 6127 and S. 83 is attested to by the following extracts from the floor debate and committee hearings:

In testifying before both the House and Senate Subcommittees considering the various proposed civil rights bills, Attorney General Brownell supported the adoption of the House 'fair play' rules instead of the more restrictive procedures outlined in S. 83. Thus, at the Senate hearings, the Attorney General made the following statement:

'Now there is one other addition to S. 83 that I would like to make special reference to and that is the provision for rules of procedure contained in section 102 on pages 2 to 10 of S. 83.

'These rules of procedure are considerably more restrictive than those imposed on regular committees of the House and Senate. There is much in them which clearly would be desirable. We have not at yet had any experience with the use of rules such as those proposed here and we cannot predict the extent to which they might be used to obstruct the work of the Commission.

'Yet I feel that the task to be given to this Commission is of such great public importance that it would be a mistake to make it the vehicle for experimenting with new rules which may have to be tested out under the courts and this is only a 2-year Commission and you might have to spend those 2 years studying the rules instead of getting at the facts.' Hearings before Subcommittee on Constitutional Rights of the Senate Judiciary Committee, 85th Cong., 1st Sess. 14—15. See also Hearings before Subcommittee No. 5 of the House Judiciary Committee, 85th Cong., 1st Sess. 593.

The lack of any right to cross-examine witnesses was commented upon by members of both the House and the Senate:

Statement of Senator Talmadge during the Senate floor debate, 103 Cong.Rec. 11504:

'No provision is made for notification of persons against whom charges are to be made.

'No provision is made for persons adversely affected by testimony taken by the Commission to be present when they are accused or later to confront and cross-examine their accusers.'

Statement of Senator Stennis during Senate floor debate, 103 Cong.Rec. 13835:

'Defamatory testimony tending to defame, degrade, or incriminate any person cannot be heard by the person slandered, since the testimony must be taken in executive session. There is no requirement in the proposed statute that the person injured by defamatory testimony shall have an opportunity to examine the nature of the adverse testimony. He has no right of confrontation nor cross-examination, and his request to subpoena witnesses on his behalf falls within the arbitrary discretion of the Commission. There is no right to subpoena witnesses.'

Statement of Representative Kilday during House floor debate, 103 Cong.Rec. 8673:

'The bill provides that witnesses may be accompanied by counsel, for what purpose? 'For the purpose of advising them concerning their constitutional rights.' That is all. Even though the Commission or its own counsel develops only a portion of a transaction, and that adverse to the witness, his lawyer cannot ask a single question to develop the remainder of the transaction or the portion favorable to him.'

Statement of Representative Frazier during Hearings before the House Rules Committee, 85th Cong., 1st Sess. 176:

'The authors of this proposal contemplate that it will yield thousands of complaints and even more thousands of subpenas will be issued. The various allegations will, in the first instance, be incontrovertible and wholly ex parte and the principal concerned, against whom the charges are made, when summoned as a witness is given no opportunity to cross-examine. True, the person summoned as a witness may have counsel (sec. 102), but only for the purpose of advising him of his constitutional rights.'

That the bill contained the House 'fair play' rules is demonstrated by the following statement of Representative Celler, the author of the bill:

'The rules of procedure of the Commission are the same as those which govern the committees of the House. For example, the chairman is required to make an opening statement as to the subject of the hearing. Witnesses are furnished with a copy of the Commission's rules and may be accompanied by counsel. The chairman is authorized to punish breaches of order by censure and exclusion. Protection is furnished to witnesses when it appears that a person may be the subject of derogatory information by requiring such evidence to be received in executive session, and affording the person affected the right to appear and testify, and further to submit a request for subpena of additional witnesses.' 103 Cong.Rec. 8491. (Emphasis supplied.)

16

Although the respondents contend that the procedures adopted by the Commission also violate their rights under the Sixth Amendment, their claim does not merit extensive discussion. That Amendment is specifically limited to 'criminal prosecutions,' and the proceedings of the Commission clearly do not fall within that category. See United States v. Zucker, 161 U.S. 475, 481, 16 S.Ct. 641, 643, 40 L.Ed. 777.

17

The full text of Section 104 of the Act reads as follows:

§ 1975c. Duties; reports; termination.

'(a) The Commission shall—

'(1) investigate allegations in writing under oath or affirmation that certain citizens of the United States are being deprived of their right to vote and have that vote counted by reason of their color, race, religion, or national origin; which writing, under oath or affirmation, shall set forth the facts upon which such belief or beliefs are based;

'(2) study and collect information concerning legal developments constituting a denial of equal protection of the laws under the Constitution; and

'(3) appraise the laws and policies of the Federal Government with respect to equal protection of the laws under the Constitution.

'(b) The Commission shall submit interim reports to the President and to the Congress at such times as either the Commission or the President shall deem desirable, and shall submit to the President and to the Congress a final and comprehensive report of its activities, findings, and recommendations not later than two years from September 9, 1957.

'(c) Sixty days after the submission of its final report and recommendations the Commission shall cease to exist.' 71 Stat. 635, 42 U.S.C. § 1975c, 42 U.S.C.A. § 1975c.

18

It should be noted that the respondents in these cases did have notice of the general nature of the inquiry. The only information withheld from them was the identity of specific complainants and the exact charges made by those complainants. Because most of the charges related to the denial of individual voting rights, it is apparent that the Commission could not have disclosed the exact charges without also revealing the names of the complainant.

19

Cf. Sinclair v. United States, 279 U.S. 263, 295, 49 S.Ct. 268, 272, 73 L.Ed. 692, holding that Congress' legitimate right to investigate is not affected by the fact that information disclosed at the investigation may also be used in a subsequent criminal prosecution. Cf. also McGrain v. Daugherty, 273 U.S. 135, 179—180, 47 S.Ct. 319, 330—331, 71 L.Ed. 580, holding that a regular congressional investigation is not rendered invalid merely because 'it might possibly disclose crime or wrongdoing' on the part of witnesses summoned to appear at the investigation. Id., 273 U.S. at page 180, 47 S.Ct. at page 330.

20

The injunction issue by the court below would certainly lead to this result since it prohibits the Commission from conducting any hearing under existing procedure, even though those being investigated are not summoned to testify.

21

A compilation of the rules of procedure governing the investigative proceedings of a representative group of administrative and executive agencies, presidential commissions, and congressional committees is set out in the Appendix to this opinion. 363 U.S. at page 454, 80 S.Ct. at page 1521.

22

The first full-fledged congressional investigating committee was established in 1792 to 'inquire into the causes of the failure of the late expedition under Major General St. Clair.' 3 Annals of Cong. 493 (1792). The development and use of legislative investigation by the colonial governments is discussed in Eberling, Congressional Investigations, 13—30. The English origin of legislative investigation in this country is discussed in Dimock, Congressional Investigating Committees, 46—56.

23

See, e.g., Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377; McGrain v. Daugherty, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580; Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692; Christoffel v. United States, 338 U.S. 84, 69 S.Ct. 1447, 93 L.Ed. 1826; United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884; United States v. Fleischman, 339 U.S. 349, 70 S.Ct. 739, 94 L.Ed. 906; Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115.

24

See Appendix, post, 363 U.S. at pages 478—485, 80 S.Ct. at pages 1536—1541. See also Dimock, Congressional Investigating Committees, 153; Eberling, Congressional Investigations, 283, 390; McGeary, The Developments of Congressional Investigative Power, 80; Liacos, Rights of Witnesses Before Congressional Committees, 33 B.U.L.Rev. 337, 359—361; American Bar Association, Special Committee on Individual Rights as Affected by National Security, Appendix to Report on Congressional Investigations, 67—68.

The English practice is described in Clokie and Robinson, Royal Commissions of Inquiry; Finer, Congressional Investigations: The British System, 18 U. of Chi.L.Rev. 521; Keeton, Parliamentary Tribunals of Inquiry, in Vol. 12, Current Legal Problems 1959, 12.

25

See Appendix, post, 363 U.S. at pages 454—471, 80 S.Ct. at pages 1521—1532. See also Gellhorn, Federal Administrative Proceedings, 108; Report of the Attorney General's Committee on Administrative Procedure and the various Monagraphs written by that Committee.

26

The Commission's practice with regard to investigations was described by the Attorney General's Committee on Administrative Procedure, Monograph, Securities Exchange Commission, 34—41. The following extract is pertinent here:

'Where formal investigations are utilized as preliminaries to decisive proceedings, the person being investigated is normally not sent a notice, which, in any event, is not public. The order for investigation, which includes the notice, is, however, exhibited to any person examined in the course of such investigation who so requests; since ordinarily the investigation will include the examination of the person suspected of violation, he will, thus, have actual notice of the investigation. Since a person may, on the other hand, be wholly unaware of the fact that he is being investigated until his friends who are interviewed so inform him, and since this may sometimes give rise to antagonism and a feeling that the Commission is besmirching him behind his back, no reason is apparent why, simply as a matter of good will, the Commission should not in ordinary cases send a copy of its order for investigation to the person under investigation.

'The Commission's Rules of Practice expressly provide that all such rules (governing notice, amendments, objections to evidence, briefs, and the like) are inapplicable to formal investigatory hearings in the absence of express provision to the contrary in the order and with the exception of rule II, which relates to appearance and practice by representatives before the Commission. The testimony given in such investigations is recorded * * *. In the usual case, witnesses are granted the right to be accompanied by counsel, but the latter's role is limited simply to advising the witnesses in respect of their right against self-incrimination without claiming the benefits of the immunity clause of the pertinent statute (a right of which the presiding officer is, in any event, instructed to apprise the witnesses) and to making objections to question which assertedly exceed the scope of the order of investigation.' Id., 37—38. (Emphasis supplied.) See also Loss, Securities Regulation (1951), 1152.

27

Loss, Securities Regulation (1951), 1153. See also the statutes cited in the Appendix, 363 U.S. at page 463, 80 S.Ct. at page 1526.

28

Marcy, Presidential Commissions, 97—101.

29

See Appendix, 363 U.S. at pages 472—479, 80 S.Ct. at pages 1532—1537.

30

However, the courts have on more than one occasion likened investigative agencies of the executive branch of Government to a grand jury. See, e.g., United States v. Morton Salt Co., 338 U.S. 632, 642, 70 S.Ct. 357, 363, 94 L.Ed. 401; Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 216, 66 S.Ct. 494, 509, 90 L.Ed. 614; Consolidated Mines of Calif. v. Securities & Exchange Comm., 9 Cir., 97 F.2d 704, 708; Woolley v. United States, 9 Cir., 97 F.2d 258, 262.

31

The Commission cites In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376, and Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, 79 S.Ct. 1157, 3 L.Ed.2d 1234, in support of its position. Each of us who participated in those cases adheres to the view to which he subscribed therein. However, because there are significant differences between the Groban and Anonymous cases and the instant litigation, and because the result we reach today is supported by the other considerations analyzed herein, the Court does not find it necessary to discuss either of those cases.

1

This Appendix describes the Rules of Procedure governing the authorized investigative proceedings of a representative group of administrative agencies, executive departments, presidential commissions, and congressional committees. The Appendix does not purport to be a complete enumeration of the hundreds of agencies which have conducted investigations during the course of this country's history. Rather, it is designed to demonstrate that the procedures adopted by the Civil Rights Commission are similar to those which have traditionally been used by investigating agencies in both the executive and legislative branches of our Government.

2

We have found many other administrative agencies and presidential commissions enpowered to conduct investigations and to subpoena witnesses. Those agencies are not listed in the body of this Appendix because we were unable to find an adequate description of the rules of procedure governing their investigative proceedings. However, it is significant that the statutes creating these agencies made no reference to apprisal or cross-examination in investigative proceedings. Among the agencies in this catagory are: (1) Bureau of Corporations in the Department of Commerce and Labor, 32 Stat. 827; (2) Commission on Industrial Relations, 37 Stat. 415; (3) the Railroad Labor Board, 41 Stat. 469; (4) the United States Coal Commission, 42 Stat. 1023; (5) the Investigation Commission established by the Railroad Retirement Act of 1935, 49 Stat. 972, 45 U.S.C.A. §§ 215-218 note; (6) National Bituminous Coal Commission, 49 Stat. 992; (7) Wage and Hour Division of the Department of Labor, 52 Stat. 1061, 29 U.S.C.A. § 204; (8) Board of Investigation to Investigate Various Modes of Transportation, 54 Stat. 952, 49 U.S.C.A. note preceding section 1; (9) Commission on Organization of the Executive Branch of the Government, 67 Stat. 143, 5 U.S.C.A. §§ 138a-138j note; (10) Commission on Intergovernmental Relations, 67 Stat. 145, 5 U.S.C.A. §§ 138a-138j note.

3

If the relevant statute makes no reference to notice, this fact will be mentioned. The negative inference which may be drawn from the absence of any statutory requirement that notice be given is supported by the fact that, in a few instances, Congress has made specific provision for the giving of notice in investigative proceedings. See, e.g., the statutes cited on page 473 of 363 U.S., page 1532 of 80 S.Ct., supra, requiring the United States Tariff Commission to give reasonable notice of any investigative hearing.

4

If the relevant statute makes no reference to cross-examination, that fact will be mentioned because of the inference which may be drawn therefrom that Congress did not intend persons appearing at investigative hearings to cross-examine other witnesses. This inference

is strengthened by the fact that in a relatively few instances Congress has, for one reason or another, required that persons being investigated by a commission or agency be given the right to cross-examine other witnesses. See, e.g., 49 Stat. 1381, 46 U.S.C.A. § 239, which authorized the Secretary of Commerce to appoint special boards to investigate the causes of marine casualties.

5

The Office of Price Stabilization is now defunct, having been terminated by Exec.Order No. 10434, 18 Fed.Reg. 809, U.S.Code Cong. and Adm.News 1953, p. 994.

6

The Office of Price Administration is now defunct, its functions having been transferred to the Office of Temporary Controls by Exec.Order No. 9809, 11 Fed.Reg. 14281, 50 U.S.C.A. x, Appendix § 601 note, which in turn was terminated by Exec.Order No. 9841, 12 Fed.Reg. 2645, 50 U.S.C.A. Appendix, § 601 note.

7

In addition to the investigating committees listed in the body of the Appendix, we think mention should also be made of the contemporary standing committees of Congress. Most of these committees have rules very similar to those adopted by the Civil Rights Commission. The Rules of Procedure of the Subcommittee on Privileges and Elections of the Senate Committee on Rules and Administration are typical. Rule 17 of the Rules reads as follows:

"There shall be no direct or cross examination by counsel appearing for a witness. However, the counsel may submit in writing any question or questions he wishes propounded to his client or to any other witness. With the consent of the majority of the Members of the Subcommittee present and voting, such question or questions shall be put to the witness by the Chairman, by a Member of the Subcommittee or by the Counsel of the Subcommittee either in the orginal form or in modified language. The decision of the Subcommittee as to the admissibility of questions submitted by counsel for a witness, as well as to their form, shall be final."

See also S.Rep. No. 2, 84th Cong., 1st Sess. 20; Hearings before the Subcommittee on Rules of the Senate Committee on Rules and Administration, on S.Res. 65, 146, 223, 249, 253, 256, S.Con.Res. 11 and 86, 83d Cong., 2d Sess., Part 3, 141-142, 344, 345, 374; Rules of Procedure of the Select Committee on Improper Activities in the Labor or Management Field, Rules 10 and 11. Reference has been made in the text, supra, 363 U.S. at pages 436-439, 80 § Ct. at pages 1512, 1513, to the House 'fair play' rules, which govern the hearings of most House Committees, and which make no provision for cross-examination.

1

Civil suits for damages are also authorized. See 42 U.S.C. § 1983, 42 U.S.C.A. § 1983; Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281.

2

The section reads in relevant part as follows:

'Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State * * * to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States * * * by reason of his color, or race * * * shall be fined not more than $1,000 or imprisoned not more than one year, or both.'

3

The Rules of the Commission by Subdivision (k) provide:

'Subject to the physical limitations of the hearing room and consideration of the physical comfort of Commission members, staff, and witnesses, equal and reasonable access for coverage of the hearings shall be provided to the various means of communications, including newspapers, magazines, radio, news reels, and television. However, no witness shall be televised, filmed, or photographed during the hearings if he objects on the ground of distraction, harassment, or physical handicap.'

4

Cf. Frankfurter, Hands Off the Investigations, New Republic, May 21, 1924, p. 329, at 331: 'It must be remembered that our rules of evidence are but tools for ascertaining the truth, and that these tools vary with the nature of the issues and the nature of the tribunal seeking facts. Specifically, the system of rules of evidence used in trials before juries 'are mainly aimed at guarding the jury from the over-weening effect of certain kinds of evidence.' That system, as pointed out by Wigmore, 'is not applicable by historical precedent, or by sound practical policy' to 'inquiries of fact determinable by administrative tribunals.' Still less is it applicable to inquiries by congressional committees. Of course the essential decencies must be observed, namely opportunity for cross-examination must be afforded to those who are investigated or to those representing issues under investigation.'

5

Rule 5(b), Rules of Criminal Procedure, 18 U.S.C.A., provides that the defendant shall be informed of the complaint against him and of his right to retain counsel. Rule 5(c) expressly states, 'The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf.'