For alleged perjurious testimony before a Committee of the House
of Representatives, petitioner was convicted under the perjury
statute of the District of Columbia (§ 22-2501 of the D.C.Code),
which makes it an essential element of the offense that it shall
have been committed before "a competent tribunal." The Committee in
question had a membership of twenty-five. Although evidence was
adduced at the trial from which a jury might have concluded that,
at the time of the alleged perjurious testimony, less than a quorum
of the Committee were in attendance, the trial court, in its
charge, allowed the jury to find a quorum present simply by finding
that thirteen or more members were in attendance when the Committee
was convened.
Held: so much of the instructions to the jury as
allowed them to find a quorum present without reference to the
facts at the time of the alleged perjurious testimony was
erroneous, and the judgment of conviction must be reversed. P.
338 U. S.
85-90.
84 U.S.App.D.C. 132, 171 F.2d 1004, reversed.
Petitioner was convicted of perjury under the perjury statute of
the District of Columbia ( 22-2501 of the D.C.Code) for alleged
perjurious testimony before a Committee of the House of
Representatives. The Court of Appeals affirmed the conviction. 84
U.S.App.D.C. 132, 171 F.2d 1004. This Court granted certiorari. 336
U.S. 934.
Reversed, p.
338 U. S.
90.
Page 338 U. S. 85
MR. JUSTICE MURPHY delivered the opinion of the Court.
In March of 1947, the committee on Education and Labor was, as
it is now, a standing committee of the House of Representatives.
[
Footnote 1] During the first
session of the 80th Congress, it held frequent hearings on proposed
amendments to the National Labor Relations Act. On March 1, 1947,
petitioner appeared as a witness before the committee, under oath,
and in the course of the proceedings was asked a series of
questions directed to his political affiliations and associations.
In his answers, he unequivocally denied that he was a Communist or
that he endorsed, supported, or participated in Communist programs.
As a result of these answers, he was indicted for perjury under
Title 22, § 2501 of the District of Columbia Code, [
Footnote 2] and, after a trial by jury, was
convicted. The Court of Appeals affirmed the conviction, 171 F.2d
1004, and we granted certiorari to review its validity. 336 U.S.
934.
No question is raised as to the relevancy or propriety of the
questions asked. Petitioner's main contention is that the committee
was not a "competent tribunal" within the meaning of the statute,
in that a quorum of
Page 338 U. S. 86
the committee was not present at the time of the incident on
which the indictment was based. As to this, the record reveals the
following: the Committee on Education and Labor consists of
twenty-five members, of whom thirteen constitute a quorum. At the
commencement of the afternoon session on Saturday, March 1, 1947,
shortly after two o'clock, a roll call showed that fourteen members
were present. Petitioner's testimony started some time after four
o'clock. The responses said to constitute offenses were given just
prior to five p.m.
Evidence was adduced at the trial from which a jury might have
concluded that, at the time of the allegedly perjurious answers,
less than a quorum -- as few as six -- of the committee were in
attendance. Counsel for the petitioner contended vigorously at the
trial, on appeal, and in this Court that, unless a quorum were
found to be actually present when the crucial questions were asked,
the statutory requirement of a competent tribunal was not met, and
that, absent such a finding, a verdict of acquittal should
follow.
The trial court agreed that the presence of a quorum was an
indispensable part of the offense charged, and instructed the jury
that, to find the defendant guilty, they had to find beyond a
reasonable doubt "[t]hat the defendant Christoffel appeared before
a quorum of at least thirteen members of the said Committee,"
and
"that at least that number must have been actually and
physically present. . . . If such a Committee so met, that is, if
thirteen members did meet at the beginning of the afternoon session
of March 1, 1947, and thereafter, during the progress of the
hearing, some of them left temporarily or otherwise, and no
question was raised as to the lack of a quorum, then the fact that
the majority did not remain there would not affect, for the
purposes of this case, the existence of that Committee as a
competent tribunal, provided that, before the oath was
administered
Page 338 U. S. 87
and before the testimony of the defendant was given, there were
present as many as 13 members of that Committee at the beginning of
the afternoon session. . . ."
This charge is objected to insofar as it allows the jury to find
a quorum present simply by finding that thirteen or more members
were in attendance when the committee was convened, without
reference to subsequent facts.
The Constitution of the United States provides that "Each House
may determine the Rules of its Proceedings," Art. I, § 5, and we
find that the subject of competency, both of the House as a whole
and of its committees, has been a matter of careful consideration.
Rule XI(2)(f) of the House of Representatives reads in part, "The
rules of the House are hereby made the rules of its standing
committees so far as applicable. . . ." Rule XV of the House
provides for a call of the House if a quorum is not present, and it
has been held under this rule that such a call, or a motion to
adjourn, is the only business that may be transacted in the absence
of a quorum. IV Hind's Precedents 2950; IV
id. 2988.
See IV
id. 2934, 2939; VI Cannon's Precedents
653; VI
id. 680. It appears to us plain that even the most
highly privileged business must be suspended in the absence of a
quorum in the House itself.
A similar situation obtains in the committees. [
Footnote 3] The Legislative Reorganization
Act of 1946, 60 Stat. 812, provides, referring to the standing
committees, in § 133(d),
"No measure or recommendation shall be reported from any such
committee unless a majority of the committee
Page 338 U. S. 88
were actually present."
The rule embodied in this subsection was effective as long ago
as 1918 to keep off the floor of the House a bill from a committee
attended by less than a quorum, even though no objection was raised
in the committee meeting itself. It appeared that the situation in
the committee was much like the one with which we are concerned,
with members coming and going during the meeting. No point of no
quorum was raised at the committee meeting. When the Chairman
proposed in the House to bring up the bill considered in the
meeting, the Speaker ruled, on objection being made from the floor,
that, in spite of the point's not having been raised in committee,
the bill could not be reported. The absence of a quorum of the
committee, though at the time unobjected to, had made effective
action impossible. VIII Cannon's Precedents 2212. Witnesses in
committee hearings cannot be required to be familiar with the
complications of parliamentary practice. Even if they are, the
power to raise a point of no quorum appears to be limited to
members of the committee. We have no doubt that, if a member of the
committee had raised a point of no quorum and a count had revealed
the presence of less than a majority, proceedings would have been
suspended until the deficiency should be supplied. In a criminal
case affecting the rights of one not a member, the occasion of
trial is an appropriate one for petitioner to raise the
question.
Congressional practice in the transaction of ordinary
legislative business is, of course, none of our concern, and, by
the same token, the considerations which may lead Congress, as a
matter of legislative practice, to treat as valid the conduct of
its committees do not control the issue before us. The question is
neither what rules Congress may establish for its own governance
nor whether presumptions of continuity may protect the validity of
its legislative conduct. The question is, rather, what rules
Page 338 U. S. 89
the House has established and whether they have been followed.
It, of course, has the power to define what tribunal is competent
to exact testimony and the conditions that establish its competency
to do so. The heart of this case is that, by the charge that was
given it, the jury was allowed to assume that the conditions of
competency were satisfied even though the basis in fact, was not
established and in face of a possible finding that the facts
contradicted the assumption.
We are measuring a conviction of crime by the statute which
defined it. As a consequence of this conviction, petitioner was
sentenced to imprisonment for a term of from two to six years. An
essential part of a procedure which can be said fairly to inflict
such a punishment is that all the element of the crime charged
shall be proved beyond a reasonable doubt. An element of the crime
charged in the instant indictment is the presence of a competent
tribunal, and the trial court properly so instructed the jury. The
House insists that, to be such a tribunal, a committee must consist
of a quorum, and we agree with the trial court's charge that, to
convict, the jury had to be satisfied beyond a reasonable doubt
that there were "actually physically present" a majority of the
committee. [
Footnote 4]
Page 338 U. S. 90
Then to charge, however, that such requirement is satisfied by a
finding that there was a majority present two or three hours before
the defendant offered his testimony, in the face of evidence
indicating the contrary, is to rule as a matter of law that a
quorum need not be present when the offense is committed. This not
only seems to us contrary to the rules and practice of the
Congress, but denies petitioner a fundamental right. That right is
that he be convicted of crime only on proof of all the elements of
the crime charged against him. A tribunal that is not competent is
no tribunal, and it is unthinkable that such a body can be the
instrument of criminal conviction. The Court of Appeals erred in
affirming so much of the instructions to the jury as allowed them
to find a quorum present without reference to the facts at the time
of the alleged perjurious testimony, and its judgment is
reversed.
Reversed.
[
Footnote 1]
Legislative Reorganization Act of 1946, 60 Stat. 812, 822, §
121, Rule X, House of Representatives; H.R. Rep. No. 111, adopted
Feb. 26, 1947 (93 Cong.Rec. 1504).
[
Footnote 2]
"§ 22-2501. . . . Perjury -- Subornation of perjury. Every
person who, having taken an oath or affirmation before a competent
tribunal, officer, or person, in any case in which the law
authorized such oath or affirmation to be administered, that he
will testify, declare, depose, or certify truly, or that any
written testimony, declaration, deposition, or certificate by him
subscribed is true, willfully and contrary to such oath or
affirmation states or subscribes any material matter which he does
not believe to be true, shall be guilty of perjury, and any person
convicted of perjury or subornation of perjury shall be punished by
imprisonment in the penitentiary for not less than two nor more
than ten years. . . ."
31 Stat. 1329.
[
Footnote 3]
There is some difference between procedure in the full House and
in its committees. In the former, business is transacted on the
assumption that a quorum is present at all times, unless a roll
call or a division indicate the contrary. In committee meetings,
however, the presence of a quorum must be affirmatively shown
before the committee is deemed to be legally met. VIII Cannon's
Precedents 2222.
[
Footnote 4]
In
Meyers v. United States, 171 F.2d 800, the appellant
made contentions similar to those of petitioner. The Court of
Appeals for the District of Columbia Circuit held the same view
expressed here.
"On October 6, 1947, however, only two senators were present at
the hearing. Since they were a minority of the subcommittee, they
could not legally function except to adjourn. For that reason, the
testimony of Lamarre given on that day cannot be considered as
perjury, nor can appellant be convicted of suborning it."
171 F.2d at 811. The conviction was affirmed on the ground that
all the perjurious statements alleged in the indictment were made
on October 4, when a quorum was present. 171 F.2d at 812.
MR. JUSTICE JACKSON, dissenting.
THE CHIEF JUSTICE, MR. JUSTICE REED, MR. JUSTICE BURTON, and I
think the Court is denying to the records of the Congress and its
committees the credit and effect to which they are entitled, quite
contrary to all recognized parliamentary rules, our previous
decisions, and the Constitution itself.
No one questions that the competency of a Committee of either
House of Congress depends upon the action of the House in
constituting the Committee, and in determining the rules governing
its procedure. Nor does anyone deny that each House has the power
to provide expressly that a majority of the entire membership of
any of its Committees shall constitute a quorum for certain
purposes, and that, for other purposes, a different number shall be
sufficient. For example, either House may provide expressly that,
for the purpose of convening a session of a Committee
Page 338 U. S. 91
or of approving a report, a majority of the Committee's entire
membership shall be necessary, and that, for the purpose of taking
sworn testimony, one or more Committee members shall be sufficient
to constitute a quorum. Similarly, each House may spell out a
formal rule that a Committee shall constitute a competent tribunal
to take sworn testimony if a majority of its members shall be
present at the beginning of the session at which the testimony is
taken, and that such competency shall continue although the
attendance of Committee members may drop, during the Committee's
session, to some smaller number. The reasonableness of such a rule
is apparent because the value of the testimony taken by such a
Committee is measured not so much by the number of people who hear
it spoken at the session as it is by the number and identity of
those who read it later.
But what Congress may do by express rule it may do also by its
custom and practice. There is no requirement, constitutional or
otherwise, that its body of parliamentary law must be recorded in
order to be authoritative. In the absence of objection raised at
the time, and in the absence of any showing of a rule, practice, or
custom to the contrary, this Court has the duty to presume that the
conduct of a Congressional Committee, in its usual course of
business, conforms to both the written and unwritten rules of the
House which created it. "Each House may determine the Rules of its
Proceedings. . . ." Art. I, § 2, cl. 2. This Court accordingly can
neither determine the rules for either House of Congress nor
require those rules to be expressed with any degree of explicitness
other than that chosen by the respective Houses.
The record shows a quorum of this committee present when the
session began and neither Christoffel nor anyone else had raised
the point of no quorum up to the time he gave false testimony. On
trial for perjury he introduced oral testimony tending to show that
at the moment
Page 338 U. S. 92
he so testified, less than a quorum were actually present. The
trial court charged that, in the absence of challenge or proof to
the contrary, the quorum established at the beginning of the
session is presumed to continue, and the jury could find
Christoffel guilty of perjury if he gave false testimony before
such a body. He was found guilty. The Court now holds the charge
was erroneous, and that, if the Government cannot show positively
that there was a quorum present when he falsified, the committee
was not a "competent tribunal" within the Perjury Statute of the
District, and his conviction thereunder is invalid.
Thus, the issue is not whether a quorum is required in order for
the committee to be a competent tribunal, but whether committee
rules, practices and records, and congressional rules, practices
and records in analogous situations, are subject to attack by later
oral testimony and to invalidation by the courts.
All the parliamentary authorities, including those cited by the
Court, agree that a quorum is required for action, other than
adjournment, by any parliamentary body, and they agree that the
customary law of such bodies is that, the presence of a quorum
having been ascertained and recorded at the beginning of a session,
that record stands unless and until the point of no quorum is
raised. This is the universal practice. If it were otherwise,
repeated useless roll calls would be necessary before every
action.
In this case, therefore the record on the subject of quorum was
entitled to full credit. Christoffel himself did not, during his
testimony, raise the question of no quorum. Whether one not a
member of the body would have been permitted to do so, and what
effect it would have had he been refused, we need not decide. The
fact is he made no effort to raise the point. To have then even
suggested the objection would have given opportunity to the
Committee to correct it. And if there were not enough committee
members present to make a
Page 338 U. S. 93
legal body, he would be at liberty, if his objection were
overruled, to walk out. Instead, he chose to falsify to the
committee, and now says that, despite the record, he should be
allowed to prove that not enough members were present for his lie
to be legal perjury. The Court agrees and holds that the House
Rules requiring a quorum for action require this result. Since the
constitutional provision governing the House itself also requires a
quorum before that body can do business, this raises the question
whether the decision now announced will also apply to the House
itself. If it does, it could have the effect of invalidating any
action taken or legislation passed without a record vote, which
represents a large proportion of the business done by both House
and Senate. The effect is illustrated by noting that such a rule
would make possible the invalidation of not only this conviction
for perjury, but the Perjury Act [
Footnote 2/1] itself, as well as the Judicial Code
[
Footnote 2/2] which is now the
source of this Court's authority to review the conviction.
Moreover, this rule is in direct contravention of the Constitution,
which does not require either House or Senate, much less a
committee, to take a record vote except [
Footnote 2/3] "at the Desire of one-fifth of those
Present." Art. I, § 5, cl. 3.
The Court significantly omits citation of any prior decision in
support of its present conclusion. [
Footnote 2/4] The reason
Page 338 U. S. 94
is fairly clear -- the others are inconsistent with this one.
For example, in
United States v. Ballin, 144 U. S.
1, we held it to be within the competency of the House
to prescribe any method reasonably certain to ascertain the
Page 338 U. S. 95
fact of a quorum; that the courts are not concerned with the
wisdom or advantages of any such rule -- "with the courts, the
question is only one of power." The House has adopted the rule and
practice that a quorum, once established, is presumed to continue
unless and until a point of no quorum is raised. By this decision,
the Court, in effect, invalidates that rule despite the limitations
consistently imposed upon courts where such an issue is tendered.
See Field v. Clark, 143 U. S. 649,
143 U. S.
669-673;
United States v. Ballin, 144 U. S.
1,
144 U. S. 5;
Flint v. Stone Tracy Co., 220 U.
S. 107,
220 U. S. 143;
cf. Leser v. Garnett, 258 U. S. 130,
258 U. S. 137.
And see Coleman v. Miller, 307 U.
S. 433,
307 U. S.
453-456, and concurring opinions at 307 U.S.
307 U. S.
456-460, and
307 U. S.
460-470.
We do not think we should devise a new rule for this particular
case to extend aid to one who did not raise his objection when it
could be met and who has been prejudiced by absence of a quorum
only if we assume that, although he told a falsehood to eleven
Congressmen, he would have been honest if two more had been
present. But in no event should we put out a doctrine by which
every Congressional Act or Committee action, and perhaps every
judgment here, can be overturned on oral testimony of interested
parties.
We should affirm the conviction.
[
Footnote 2/1]
Passed without record vote by the Senate, 34 Cong.Rec. Pt. 4,
pp. 3496-97, and by the House without a record vote, 34 Cong.Rec.
Pt. 4, p. 3586.
[
Footnote 2/2]
Passed by the Senate without a record vote, 94 Cong.Rec. Pt. 7,
p. 7930, and motion to reconsider withdrawn, 94 Cong.Rec. Pt. 7, p.
8297. Passed by the House without a record vote, 94 Cong.Rec. Pt.
7, p. 8501.
[
Footnote 2/3]
A separate provision requires a record vote on the question of
overriding a Presidential veto. Art. I, § 7, cl. 2.
[
Footnote 2/4]
This is not because others have not tried to raise the issue. In
Meyers v. United States, 171 F.2d 800,
cert.
denied, 336 U.S. 912, the petitioner was convicted of
subornation of perjury committed before a committee of Congress on
two separate days -- October 4 and October 6. The conviction was
allowed to stand despite a charge to the jury that the quorum on
October 4 was presumed to continue unless and until a committee
member raised the point of no quorum, and that false testimony
given before the point is raised is perjurious under this same
statute. That charge is practically identical with the charge given
in this case, of which this Court now says:
"The heart of this case is that, by the charge that was given it
the jury was allowed to assume that the conditions of competency
were satisfied even though the basis in fact, was not established
and in face of a possible finding that the facts contradicted the
assumption."
This perfectly describes the
Meyers case, considering
only the October 4th testimony, on which it is said the conviction
rested. Considering only that part of each count, Meyers was
convicted, and is now imprisoned for suborning perjury given under
identical conditions as did Christoffel, and Meyers' guilt was
determined by a jury which received the same ruling the Court now
holds to be error as applied to Christoffel. Yet the Meyers
conviction was affirmed, and we denied his plea for review. Such a
denial here, of course, does not imply approval of the law
announced below, but, on the undisputed facts, Meyers' conviction
rests on a basis which this Court says is "unthinkable" as to
Christoffel, whose conviction is reversed.
Moreover, the Meyers jury was permitted to convict partly at
least on the basis of testimony given before a Committee on October
6, when the committee records showed, and the Government admits,
that no quorum was present at any time. Today's opinion is
diametrically opposed to the Meyers conviction based on the October
4th testimony alone, but the Meyers conviction also rests in part
on testimony before a body which demonstrably and admittedly never
amounted to a quorum, while Christoffel's is reversed merely
because the charge permitted the jury to ignore oral testimony
"indicating" that a quorum once admittedly established may have
evaporated. I do not see how the Court can justify such
discrimination. The court below evidently could not, for it relied
on the
Meyers case as a precedent for affirming the
conviction of Christoffel on this identical issue. 171 F.2d 1004,
1005, n. 1.