Syllabus.

lating to the matter under investigation before that body, makes a case or controversy to which the judicial power of the United States extends. As every citizen is bound to obey the law and to yield obedience to the constituted authorities acting within the law, the power conferred upon the Interstate Commerce Commission to require the attendance and testimony of witnesses and the production of books, papers, and documents relating to a matter under investigation by it, imposes upon any one summoned by that body to appear and testify the duty of appearing and testifying, and upon any one required to produce such books, papers, and documents the duty of producing them, if the testimony sought and the books, papers, etc., called for relate to the matter under investigation, if such matter is one which the Commission is legally entitled to investigate, and if the witness is not excused by the law on some personal ground from doing what the Commission requires at his hands. Power given to Congress to regulate interstate commerce does not carry with it authority to destroy or impair those fundamental guarantees of personal rights that are recognized by the Constitution as inhering in the freedom of the citizen.

It was open to each of the defendants in this proceeding to contend before the Circuit Court that he was protected by the Constitution from making answer to the questions propounded to him or that he was not bound to produce the books, papers, etc., ordered to be produced, or that neither the questions propounded nor the books, papers, etc., called for related to the particular matter under investigation, nor to any matter which the Commission was entitled under the Constitution or laws to investigate. This issue being determined in their favor by the court below, the petition of the Commission could have been dismissed upon its merits.

Hayburn's Case, 2 Dall. 409; United States v. Ferreira, 13 How. 40; Todd's Case, 13 How. 52; Gordon v. United States, 117 U. S. 697; In re Sanborn, 148 U. S. 222, examined and distinguished.

The inquiry whether a witness before the Commission is bound to answer a particular question propounded to him, or to produce books, papers, etc., in his possession and called for by that body, is one that cannot be committed to a subordinate administrative or executive tribunal for final determination. Such a body could not, under our system of government, and consistently with due process of law, be invested with authority to compel obedience to its orders by a judgment of fine or imprisonment.

Except in the particular instances enumerated in the Constitution, and considered in Anderson v. Dunn, 6 Wheat. 204, and in Kilbourn v. Thompson, 103 U. S. 168, 190, of the exercise by either house of Congress of its right to punish disorderly behavior upon the part of its members, and to compel the attendance of witnesses, and the production of papers in election and impeachment cases, and in cases that may involve the existence of those bodies, the power to impose fine or imprisonment in order to compel the performance of a legal duty imposed by the United States can only be

Argument for Appellees.

exerted, under the law of the land, by a competent judicial tribunal having jurisdiction in the premises.

A proceeding under the twelfth section of the Interstate Commerce Act is not merely ancillary and advisory, nor is its object merely to obtain an opinion of the Circuit Court that would be without operation upon the rights of the parties. Any judgment rendered will be a final and indisputable basis of action as between the Commission and the defendant, and furnish a precedent for similar cases. The judgment is none the less one of a judicial tribunal dealing with questions judicial in their nature and presented in the customary forms of judicial proceedings, because its effect may be to aid an administrative or executive body in the performance of duties legally imposed upon it by Congress in execution of a power granted by the Constitution.

The issue made in such a case as this is not one for the determination of a jury, nor can any question of contempt arise until the issue of law in the Circuit Court is determined adversely to the defendants, and they refuse to obey, not the order of the Commission, but the final order of the court. In matters of contempt a jury is not required by due process of law.

The case is stated in the opinion. See post, pages 456 to 468.

Mr. Solicitor General for appellant. Mr. Attorney General and Mr. George F. Edmunds filed a brief for same.

Mr. E. Parmalee Prentice, (with whom were Mr. J. C. Hutchins and Mr. C. S. Holt on the brief,) for appellees.

I. This investigation was in its nature judicial, and authority to make it could not lawfully be conferred by Congress upon the Interstate Commerce Commission, which is in its nature an administrative and not a judicial body.

Whether Congress could create a judicial body charged with any or all of the duties that pertain to the Interstate Commerce Commission need not be considered. Those Commissioners are appointed for a term of years, and not during good behavior, as the Constitution requires for Federal judges. This question received most thorough and careful examination by Mr. Justice Jackson in Kentucky Bridge Co. v. Louisville & Nashville Railroad, 37 Fed. Rep. 567, 612, et seq.

The inquiry which the Commission was pursuing was judicial. We assert with entire confidence, that it is not one

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Argument for Appellees.

of the constitutional means included in the power to regulate interstate commerce, to delegate to a non-judicial body the duty of inquiring whether such commerce "is carried on according to the requirements of law." The proposition thus laid down by counsel is that Congress may authorize compulsory inquiry by a non-judicial body for the purpose of discovering and punishing past violations of law. A more startling proposition has seldom been asserted in this court. These violations are, if anything, crimes, punishable by heavy penalties of fine and imprisonment, and the investigation of the question whether crime has been committed is not an administrative act within any possible construction of the language. Such an inquiry is a function of the courts, with their historic appropriate machinery of the grand jury. Cooley, Const. Lim. (5th ed.) 109, 110. See also Commonwealth v. Jones, 10 Bush, 725, where the Supreme Court of Kentucky held that the legislature even of a State, could not empower election boards to decide whether a citizen by dueling has forfeited his right to vote or hold office, since that determination involves a judicial question. Authorities might be multiplied on this point, but we do not think it necessary.

That the inquiry in this case is judicial and only judicial, it seems impossible to doubt. We are at a loss to know how counsel expects to make it appear otherwise. Tried by any test with which we are familiar, the result is the same. The language of the order entered by the Commission, and of the "informal complaints" on which that order was based, is susceptible of no other construction. The wrong complained of was that the Illinois Steel Company, by means of the "switching roads" as the device, was violating the provisions of the Interstate Commerce Act by obtaining unjust preferences over other shippers. The law makes one and only one provision in such a case, viz., the punishment of the persons responsible for such violation.

It is obvious that no special sanctity attaches to the name, the number, or the personality of the body in which this power is attempted to be lodged. If Congress may authorize such inquiry by a commission of five distinguished citizens

Argument for Appellees.

appointed for a term of years, it may, under the same constitutional warrant, confer like power on a single individual for the entire country, or on a different individual for each State or county or railroad, or may attach it as a duty to an existing office, such as that of postmaster or United States marshal. It may thus constitute an indefinite number of irresponsible citizens into detectives, armed with inquisitorial authority and a roving commission. For the safety and liberty of the citizen, Congress ought not to have any such power. It is gratifying to discover that wherever the question has been presented, the courts have decided that it has no such power.

A clearer or more emphatic statement could hardly be made, than has been made by the Interstate Commerce Commission itself on this precise point. We should almost be willing to submit this branch of the case upon its annual report of the Commission for 1893.

Turning from principle to authority, we find discussion practically foreclosed by the vigorous and decisive opinion of Mr. Justice Field in In re Pacific Railroad Commission, 32 Fed. Rep. 241. The act creating that commission conferred power in terms as broad and as plausible as those of section 12 of the Interstate Commerce Act, directing an inquiry into the management of certain railroad companies and into the relations of the directors, officers, and employés of said companies with other concerns having contracts with the companies under investigation, and also whether the companies, or their officers or agents, had paid money or done anything else for the purpose of influencing legislation. These powers, like the powers attempted to be conferred on the Interstate Commerce Commission, contained two elements. Some of them were purely and offensively inquisitorial, searching into business which was wholly private. For the rest, the information sought could only be material as a foundation for subsequent judicial (i.e. criminal) proceedings. In the first part of his opinion Mr. Justice Field, with great power and unanswerable logic, demonstrates that this is a judicial inquiry; that the Commission is in no respect a judicial body, and that under our

Argument for Appellees.

system of government such a body cannot conduct such an inquiry. He cites the decision of this court by Mr. Justice. Miller in Kilbourn v. Thompson, 103 U. S. 168, and the case of Boyd v. The United States, 116 U. S. 616, which equally with the Kilbourn case in his language, is "a bulwark against the invasion of the right of the citizen to protection in his private affairs," adds, "the courts are open to the United States as they are to the private citizen, and both can there secure by regular proceeding, ample protection of all rights and interests which are entitled to protection under a government of a written constitution and laws."

II. Even if Congress could empower the Commission to make this investigation, still it could not empower the court to grant the order applied for; because, whether the character of the inquiry is judicial or non-judicial, the question does not here arise in a case or controversy as required by the Constitution.

If this investigation by the Interstate Commerce Commission is other than judicial in its character, then by the very terms of its organization a judicial tribunal has no power over it. But that it is a judicial inquiry we have sufficiently shown by argument and authority. It remains to show that, as here presented, it is such an inquiry as does not fall within the constitutional province of this court.

The Federal Constitution provides that: "The judicial power shall extend to all cases in law and equity arising under the Constitution, the laws of the United States and treaties made, or which shall be made under their authority, to controversies to which the United States shall be

etc."

a party, The two clauses cited are the only ones under which, by any possible construction, the present application could fall. No power is granted except under the two categories of "cases" and "controversies." It was early decided, and has never been seriously questioned, that these words not only express, but limit the judicial power of the United States, and that only "cases" and "controversies" can find an entrance into the Federal courts. What these words mean, and