3] INTERSTATE COMMERCE COM

MISSION.

v.

BRIMSON.

(No. 883.)

The following dissenting opinion in the above case decided last term and reported in 154 U. S. 447, 38 L. ed. 1047, was filed on the opening of the October term, 1894.

Mr. Justice Brewer dissenting: I dissent from the opinion and judgment of the court in this case. I notice, as a preliminary matter, a practice which I think is not to be commended and ought not to be pursued. The application to punish the three appellees was denied by the circuit court. The reason given for the decision was the constitutionality of that portion of the Interstate Commerce Act which requires a court to treat and punish as a contempt of its authority the refusal of a witness before the commission to answer questions. In the opinion this court Considers that reason, holds it unsound, and remands the case for further proceedings. On such further proceedings the circuit court may, without disobedience of the mandate, again deny the application, for the further reason that the questions propounded by the commission to the witnesses are deemed irrelevant or incompetent; and on a second appeal it may be that 4] and then this curious *result will appear: Of two successive judgments in the same case, each denying the same application, this court sustains one and reverses the other. I had supposed the rule was settled that the inquiry in this court was simply whether that which adjudged by the trial court was erroneous, and not whether the reasons given therefor were good or bad, and that a correct judgment was always sustained, even if the reasons given therefor were erroneous. But this is a minor matter, and I only notice it to express my dissent from the practice.

was

I

pass, therefore, to the important question U. S., Book 39.

155 U.S.

considered by the court in its opinion. With the bulk of that opinion I have no disposition to quarrel. I agree as to the power of the United States over interstate commerce, but that throws no more light on the real question involved herein than an inquiry into the power of Congress to enact laws would upon the question determined in Kilbourn v. Thompson, 103 U. S. 168 [26: 377], of the right of the House of Representatives to punish as for contempt one who refused to disclose the business of a real estate partnership of which he was a member. The power of Congress to use all reasonable and proper means for exercising its control over interstate commerce carries with with it no right to break down the barriers between judicial and administrative duties, or to make courts the mere agents to assist an administrative body in the prosecution of its inquiries. For, if the power exists, as is affirmed by this decision, it carries with it the power to make courts the mere assistants of every administrative board or executive officer in the pursuit of any information desired or in the execution of any duties imposed. It informs Congress that the only mistake it made in the Kilbourn case was in itself attempting to punish for contempt, and that hereafter the same result can be accomplished by an Act requiring the courts to punish for contempt those who refuse to answer questions put by either house, or any committee thereof.

It must be borne in mind that this is purely and solely a proceeding for contempt. No action is pending in the court to enforce a right or redress a wrong, public or private. *No [5 inquiry is being carried on in it with a view to the punishment of crime, nothing sought to be done for the perpetuation of testimony or in aid of any judicial proceeding. The delinquent is punished for a contempt of court in refusing to testify before a commission in aid of an investigation carried on by such commission. What is this power vested in courts of punishment for contempt, and for what purpose it is vested? It is a power of summary punishment and existing to enable the courts to exercise their judicial duties. "Contempt

of court is a specific criminal offense." New Orleans v. New York Mail SS. Co. 87 U. S. 20 Wall. 392 [22: 357]. In Anderson v. Dunn, 19 U. S. 6 Wheat. 204, 227 [5: 242, 247], it was said that "courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum in their presence and submission to their lawful mandates." So in Er parte Robinson, 86 U. S. 19 Wall. 505, 510 [22: 205, 207]: The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power." And in Re Cooper, 32 Vt. 253, 257: "The power to punish for contempt is inherent in the nature and constitution of a court. It is a power not derived from any statute, but arising from necessity; implied because it is necessary to the exercise of all other powers."

A contempt presupposes some act derogatory to the power and authority of the court. But before this proceeding was initiated the only authority disregarded was that of the commission. The court treats such act derogatory to the powers of the commission as derogatory to its own, and punishes, as for a contempt of its own authority, one who disobeys the order of the commission. It is no sound answer to say that the court orders the witness to testify and punishes for disobedience of that order. The real wrong is in not testifying before the commission, and that is the ground of the punish6] ment. *Otherwise any disregard of any duty can be treated as a contempt of court and punished as such. It will be sufficient to cite the delinquent and order his punishment as for a contempt of court unless he discharges that duty. His failure to obey the order of the court is only the nominal, while the failure to discharge the prior duty is the real ground of punishment. No forms of statement can change the substantial fact that the inherent power of courts to punish for contempt is exercised, not to preserve the authority of the court, not in aid of proceedings carried on in them, but to aid a merely administrative body, and to compel obedience, to its requirements. It makes the courts the mere assistants of a commission.

It is said that this proceeding is substantially, if not precisely, similar to that which would arise if Congress had passed an Act imposing penalties on parties refusing to testify before a commission and a proceeding was commenced to recover such penalties. But surely the differences are vital. If such proceeding was a criminal prosecution, defendants would have the constitutional guarantee of a trial by jury, and this, too, in an action at law if the amount of the penalty exceeded $20. By making it a proceeding for contempt, these constitutional protections are evaded. Further, there is no penalty prescribed. Refusal to answer is not made an offense, misdemeanor, or felony.

Suppose a law was enacted making crim

inal the refusal to answer questions put by a commission (and a statute would be necessary before such refusal could be adjudged criminal, for there are no common 'aw offenses against the United States-United States v. Eaton, 144 U. S. 677 [36: 591]) would it not be necessary that the statute define the questions, or at least the scope of the questions to be asked? Would not an Act be void for indefiniteness and lack of certainty which simply made criminal the refusal to answer relevant questions in any proper investigation carried on before a commission? Would it not be like the famous Chinese statute:

"Whoever is guilty of improper conduct, and of such as is contrary to the spirit of the laws, though not a breach of any *specific [7 part of it, shall be punished at least forty blows; and when the impropriety is of a serious nature, with eighty blows."

Could it be left to the commission to select the matter of investigation, determine the scope of the inquiry, and thus, as it were, create the crime?

Can all these difficulties be avoided by bringing the refusal to testify before a commission within the reach of the comprehensive inherent power of the courts to preserve their authority by proceedings for contempt?

But again, it is said that the Act of Congress imposes upon all persons and corporations engaged in interstate commerce a duty to answer every proper question which the commission may see fit to ask, and that a refusal to answer constitutes a refusal to discharge a duty upon rightful demand. It is true that authority is conferred upon the commission to obtain information, but the Act does not impose the duty to furnish it upon all persons interested in interstate commerce; and Congress cannot invest the commission with discretionary power to create or not create a duty. If, when a question is asked, a duty is established, then the court would have no power to do anything except to enforce the act of the commission, if valid, or punish its violation without inquiry, which, as has been stated, would make the court the mere ministerial agent of the commission. If the duty is not established, then the court is called upon to take part in a mere inquiry as to whether it would be lawful or expedient that the duty be established. It is not pretended that the court can take cognizance of the whole investigation on petition, and this application is not a part of any judicial proceeding, nor could the order adjudicate anything. It is clear that the duty, if it exists at all, is a political and not a judicial duty. Would mandamus lie to compel the discharge of this duty? Yet mandamus is the recognized proceeding for the enforcement of a duty.

It may be that it is the duty of every citizen to give information to the commission when demanded, but it is no more a duty than it is to avoid murder or other crimes; to lead a life [8 of social purity; to avoid fraud in business transactions, or neglect of other duties of good citizenship. Will it be pretended that these obligations can be enforced by the courts through proceedings as for contempt?

To say that there is a case, something that calls for judicial action, because there are par ties on the one side or on the other, is a breadth