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BARRY V. UNITED STATES EX REL. CUNNINGHAM, 279 U. S. 597 (1929)
U.S. Supreme Court
Barry v. United States ex Rel. Cunningham, 279 U.S. 597 (1929)
Barry v. United States ex Rel. Cunningham
Argued April 23, 1929
Decided May 27, 1929
279 U.S. 597
1. A resolution of the Senate which recites the refusal of a witness to answer questions asked of him by a committee pursuing an investigation under authority from the Senate, and which directs that he be attached and brought before the bar of the Senate "to answer such questions pertinent to the matter under inquiry as the Senate through its said committee or the President of the Senate may propound," expresses the purpose of the Senate to elicit testimony in response to questions to be propounded at its bar, and in deciding whether the witness must attend, it is not material to consider whether the information sought to be elicited from him by the committee was pertinent to the inquiry which it had been directed to make. P. 279 U. S. 612.
2. Exercise by the Senate of its judicial power to judge of the elections, returns, and qualifications of its members, Const., Art. I, § 5, cl. 1, necessarily involves the ascertainment of facts, the attendance of witnesses, the examination of such witnesses, with the power to compel answers to pertinent questions, to determine
the facts and apply the appropriate rules of law, and, finally, to render a judgment which is beyond the authority of any other tribunal to review. P. 279 U. S. 613.
3. In the exercise of this power, the Senate may dispense with the services of a committee and itself take the testimony, or, after conferring authority on its committee, it may, at any stage, resume charge of the inquiry and deal with the subject without regard to the limitations that were put upon the committee and subject only to the restraints of the Constitution. P. 279 U. S. 613.
4. It is not to be assumed, in advance of a witness' interrogation at the bar of the Senate, that constitutional restraints will not be faithfully observed. P. 279 U. S. 614.
5. When one who, upon the face of the returns, has been elected to the Senate and who has a certificate from the Governor of his state to that effect, presents himself to the Senate claiming the right of membership, the jurisdiction of the Senate to determine the rightfulness of the claim is invoked, and its power to adjudicate such right immediately attaches by virtue of § 5 of Article I of the Constitution, empowering it to judge of the elections, returns and qualifications of its "members." P. 279 U. S. 614.
6. Whether, pending this adjudication, the credentials should be accepted, the oath administered, and the full right accorded to participate in the business of the Senate is a matter within the discretion of the Senate. P. 279 U. S. 614.
7. Refusal by the Senate to seat the claimant pending the investigation does not deprive the state of its "equal suffrage in the Senate" within the meaning of Article V of the Constitution. P. 279 U. S. 615.
8. The power of the Senate to require the attendance of witnesses, when judging of the elections, returns, and qualifications of its members is a necessary incident of the power to adjudicate in nowise inferior under like circumstances to that exercised by a court of justice, and includes in some cases the power to issue a warrant of arrest to compel such attendance. P. 279 U. S. 616.
9. The warrant may issue without previous subpoena where there is good reason to believe that otherwise the witness will not be forthcoming. P. 279 U. S. 616.
10. The Senate, having sole authority under the Constitution to judge of the elections, returns, and qualifications of its members, may exercise in its own right the incidental power of compelling the attendance of witnesses without the aid of a statute. P. 279 U. S. 618.
11. The act of the Senate in issuing its warrant for the arrest of a witness is attended by the presumption of regularity which applies to the proceedings of courts. P. 279 U. S. 619.
12. It is to be assumed that the Senate will deal with the witness in accordance with well settled rules and discharge him from custody upon proper assurance, by recognizance or otherwise, that he will appear for interrogation when required. P. 279 U. S. 619.
13. If judicial interference can be successfully invoked by the person so arrested, it can only be upon a clear showing of arbitrary and improvident use of the power constituting a denial of due process of law. P. 279 U. S. 620.
29 F.2d 817 reversed.
Certiorari, post, p. 827, to review a judgment of the circuit court of appeals reversing a decision of the district court, 25 F.2d 733, which discharged a writ of habeas corpus sued out by Cunningham and remanded him to the custody of the Sergeant-at-Arms of the Senate, who had arrested him under a warrant issued pursuant to a resolution of the Senate.
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