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June 2, 1959

Vance H. TRIMBLE, Plaintiff,
Felton M. JOHNSTON, Secretary of the United States Senate, Robert A. Brenkworth, Financial Clerk, United States Senate, and Joseph C. Duke, Sergeant at Arms, United States Senate, Defendants

The opinion of the court was delivered by: HOLTZOFF

This is an action brought by a newspaper correspondent against the Secretary of the United States Senate, the Financial Clerk of the Senate, and the Sergeant at Arms of the Senate, for a mandatory injunction requiring them to permit him to inspect and copy certain payroll records and other documents and papers relating to the disbursement of Government funds by the Senate of the United States. The case is before the Court on a motion by the defendants to dismiss the complaint.

In order to deal adequately with the issues raised by counsel, it is necessary for us to revert to basic tenets on which the institutions of the Federal Government are founded. Although like all fundamental principles they are familiar and well known, they are nevertheless likely to be overlooked at time in the pressure of details connected with the routine activities of life. It is wholesome to pause in order to reflect and ponder over them anew at periodic intervals and thus to refresh ourselves at the fountain of our liberties.

 At the foundation of the structure of the Federal Government lies the doctrine of the separation of powers among three independent co-ordinate branches, -- the legislative, the executive and judicial departments. With certain specific, express exceptions generally known as 'checks and balances', each of the three departments is independent of the others. As a corollary, none of them may encroach on the powers of either of the other two.

 The Federalist, one of the great sources of American political philosophy, refers to this principle as 'the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct' (No. 47). The author emphasizes the vital importance of this theory by stating that, 'The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.' This discussion is expanded in paper No. 48 of The Federalist, as follows:

 'It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers.'

 The judicial branch of the Government is independent of the other two departments. Its decisions and its business may not be controlled or influenced by either the legislative or executive branch. In fact, it has been often said that there can be no liberty without an independent judiciary. Reciprocally, the judicial branch of the Government may not control or direct the legislative or executive departments. Thus, the Federal courts may not issue an injunction or a writ of mandamus against the Congress. In order that there may be no interference with the business of the Congress, no Member of either House is subject to arrest, except for a criminal offense, during his attendance at a session of the House, or in going to or returning from it. *fn1" It is recognized that for similar reasons no Member of either House may be required to respond to a subpoena while the House is in session, as otherwise the quorum of the House may be broken. The established practice, the validity of which has never been successfully questioned, for a Member of Congress who is served with a subpoena to appear as a witness, is to secure permission of his House to respond to the summons. Such permission may be granted by a formal resolution. Similarly, the courts may not enjoin or restrain the President, or compel him by means of a mandatory injunction or a writ of mandamus, to perform some act. It is recognized that he may not be required to respond to a subpoena. In the early years of the Republic an attempt was made to subpoena Thomas Jefferson when he was President, to testify as a witness at the trial of Aaron Burr. Chief Justice Marshall, who presided at the trial ruled that the subpoena should issue, but expressed some doubts as to whether the President's attendance could be compelled. Jefferson took the position that he was not obliged to comply on the theory that it was not consonant with his office as President to do so, and the matter was dropped. *fn2"

 It is no part of the judicial function to supervise or control the business of the executive or legislative departments of the Government. Otherwise the judiciary, instead of being one of three coordinate branches, would be supreme over the other two. We would then have a government by the courts, instead of by the Congress and the President. Manifestly the Founding Fathers did not contemplate such a result.

 Chief Justice Taney remarked in Decatur v. Paulding, 14 Pet. 497, 516, 10 L. Ed. 559, that 'The interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied, that such a power was never intended to be given to them.' This comment is equally applicable to the business of the legislative branch.

 It is a basic duty of the Federal courts zealously to maintain their independence and not to tolerate any encroachment upon it. By the same token, it is equally the obligation of the judiciary not to attempt to usurp or infringe on the powers or independence of either of the other two departments. The ringing words of Mr. Justice Stone, in United States v. Butler, 297 U.S. 1, 78-79, 56 S. Ct. 312, 325, 80 L. Ed. 477, although uttered in a dissenting opinion, have made a deep impress on jurisprudence. He eloquently observed that, 'while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books appeal lies, not to the courts, but to the ballot and to the processes of democratic government.'

 While, as has been indicated, no suit lies against the Congress or against the President, actions may be maintained against their subordinates, but only if an individual legal right is involved. Thus, heads of executive departments are subject to suit in the Federal courts, but only if the head of the department is acting contrary to the law that circumscribes his duties, or fails to carry out a Congressional mandate; and further provided the individual legal rights of the party who brings the suit, are violated by the officer's activity or failure to act. *fn3" Such a suit may not be maintained, however, in respect to a political matter or a matter that the law leaves to the officer's discretion. *fn4" Subject to the same limitations, actions lie against individual officers of the legislative branch of the Government, such as the Comptroller General, *fn5" and the Public Printer. *fn6"

 In order that the plaintiff in the case at bar may maintain this action, it is essential for him to establish that the defendants have violated some personal right that the law accords to him. Whether any Government records are open for inspection by the public or some segment of the public is, in the first instance, to be determined by the Congress. This subject is within the legislative power. If the Congress legislates to the effect that certain specified records are to be open to the public, or to some specified members of the public, and a person to whom this right is extended by such an enactment, is denied access to the records by their custodian, then and only then, at the behest of such person, the courts may act and enforce the right of inspection that the Congress has given him. It is necessary, therefore, to examine and scrutinize the statutes bearing on this point, since the courts may not rule that the records in question are public and open to inspection unless the Congress first legislated to that effect.

 The statutory provisions on this subject are found in Title 2 of the United States Code Annotated, which relates to the Congress. Sectior 102 requires the Secretary of the Senate and the Clerk of the House of Representatives to prepare and submit to the two Houses, respectively, at the commencement of each session of Congress, a statement showing the names of all persons who have been employed in their respective offices during the preceding year, and those of the messengers of the respective Houses; the time that each person was actually employed; and the sums paid to each. Second, the Secretary of the Senate and the Clerk of the House of Representatives are required to submit a detailed, itemized statement of expenditures out of the contingent fund for each House.

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