In United States v. Bryan, D.C., 58 F.Supp. 72, Mr. Justice Holtzoff has stated, citing McGrain v. Daugherty, supra, that 'if it appears that the matter to be investigated is relevant or material to some subject over which the Congress may legislate * * * the power to conduct the investigation exists.'
In re Chapman, 166 U.S. 661, 670, 17 S. Ct. 677, 681, 41 L. Ed. 1154, held that a resolution authorizing a Congressional investigation need not declare in advance what the Congress 'meditated doing when the investigation was concluded.'
The defendant in this cause is without authority to challenge the validity of the Committee merely by virtue of certain utterances by it or its members. Relying on such statements, the defendant seeks to anticipate that the action, if any, by the Committee and, through the Committee by the Congress would be violative of the Constitution. This he cannot do The Supreme Court in Missouri, Kansas & Texas Ry. Co. v. May, 194 U.S. 267, 270, 24 S. Ct. 638, 639, 48 L. Ed. 971, said: '* * * it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.' Again, in United States v. Lovett, 328 U.S. 303, 319, 66 S. Ct. 1073, 1081, 90 L. Ed. 1252, Mr. Justice Frankfurter, in his concurring opinion, stated: 'Particularly when Congressional legislation is under scrutiny, every rational trail must be pursued to prevent collision between Congress and Court.'
Proceeding from the principle, as aptly stated by Mr. Justice Frankfurter, that 'the Court's duty (is) so to deal with congressional enactments as to avoid their invalidation unless a road to any other decision is barred,' it follows with greater force that a court should not attempt, by crystal-gazing, to anticipate actions of a Congressional committee and through such medium determine that its acts will be invalid.
Counsel for defendant cites United States v. Lovett, supra, as casting doubt on the validity of the Committee on Un-American Activities. The opinion in this case is not applicable to the instant situation. There the Court was passing upon the validity of a legislative provisions which it held to be a bill of attainder, in that punishment was inflicted upon certain individuals without a judicial trial. Such is not the situation in the present case.
From a practical viewpoint, the position of the defendant is that he may dictate the terms and conditions under which he will appear before the Committee. This is untenable. To hold otherwise would be to render the agencies of the Congress, such as committees, impotent.
The Court therefore finds that House Resolution 5 and the Committee on Un-American Activities created thereunder are not violative of the Constitution.
Having held the resolution and the committee created thereby to be valid, the question for determination here is whether or not it was within the power of the Committee to summon the defendant to appear before it. The right of the Committee to require attendance for purposes of appropriate hearing cannot be challenged. McGrain v. Daugherty, supra.
2. Counsel for the defendant asks that, if the Government challenge his representations with reference to the apportionment of representation from the State of Mississippi, the Court set down the matter for submission of proof.
In its discussion of the Fourteenth Amendment, Watson on the Constitution (Vol. II, p. 1653) states: 'Congress has never exercised the power conferred upon it by this section of reducing the representation of a State in the House of Representatives, but there can be no questions of its power or its right to do so. Of its duty to do so, it alone is the judge. The amendment places the responsibility of enforcing its provisions upon that body.'
The Court holds as a matter of law that it is not its function to pass upon the issue presented by the motion to take testimony in aid of the motion to dismiss, and the motion is therefore denied.
3. The indictment adequately advises the defendant of the precise nature of the offense with which he is charged, and conforms with the Federal Rules of Criminal Procedure, 18 U.S.C.A.following section 687.
4. Counsel for defendant challenges the constitutionality of Section 192 of Title 2 U.S.C.A., as construed and applied together with House Resolution 5, on the ground that it does not provide an ascertainable standard of guilt. With this the Court does not agree.
In this connection it is important to keep in mind that the specific charge here is a willful failure to respond in answer to a subpoena issued by a Committee of the House, authority for which is specifically found in 2 U.S.C.A. § 192. No difficulty could have been experienced by the defendant in knowing that he was required to appear and to testify to matters of inquiry committed to the Committee, and when he failed to comply, he did so at his own risk.
The statute which the defendant is charged with violating is not and is not claimed by him to be vague and indefinite. Rather, he attacks the resolution creating the Committee, claiming that its terms are not clear to him. His contention is a collateral attack upon a resolution designed to instruct and limit a Congressional Committee. As stated by Mr. Justice Holmes in Nash v. United States, 229 U.S. 373, 33 S. Ct. 780, 781, 57 L. Ed. 1232, even where the accused is under the direct imposition of a criminal statute, 'the law is full of instances where a man's fate depends on his estimating rightly, that is, as a jury subsequently estimates it, some matter of degree.' This principle is even more applicable where there is under consideration, as here, a resolution of Congress relating to an investigation.
5. Counsel for defendant attacks the indictment on the ground that it fails to show compliance with Section 194 of Title 2 U.S.C.A. This is a matter of defense. In re Chapman, 166 U.S. 661, 667, 17 S. Ct. 677, 41 L. Ed. 1154.
Other questions raised by the motion to dismiss I find to be without merit.
Counsel for the defendant petitioned the Court to ascertain and make use of in connection with this motion matters before the Grand Jury This petition is denied in that the Court holds as a matter of law that the letter of the defendant to the Chairman of the Committee on Un-American Activities dated April 8, 1947, is not a bar to prosecution for failure to attend.
The motion to dismiss, motion to take testimony in aid of motion to dismiss, and motion to inspect the minutes of the Grand Jury are denied.
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