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In re Petition of Finance Committee of Legislature of Virgin Islands to Compel Percy De Jongh

decided.: April 2, 1957.


Author: Magruder

Before MAGRUDER, WOODBURY and KALODNER, Circuit Judges.

MAGRUDER, Circuit Judge.

We have here a case of more than ordinary difficulty, involving a delicate issue of power as between a popularly elected legislature of a dependent unincorporated territory and an executive department presided over by a governor appointed by the President and confirmed by the Senate of the United States.More concretely, the question is whether, under the Revised Organic Act, 68 Stat. 497, 48 U.S.C.A. § 1541 et seq., the Legislature of the Virgin Islands, shortly prior to its adjournment sine die subject only to possible recall by the governor in special session, is authorized to direct one of its committees to institute an investigation of expenditures in the executive department - an investigation which may, and necessarily will, extend beyond the date of such adjournment sine die, with continuing power in the legislative committee thereafter to subpoena witnesses and documents from the executive department. In other words, the question is whether the power to investigate is so subordinate and ancillary to the power to legislate that the former power must be deemed to have lapsed when the latter power is at an end (or suspended).

No doubt the Congress could have made specific provision either way in the case of the Legislature of the Virgin Islands. We do not deny that a lawyer-like opinion might be drafted pointing to the conclusion that the Congress must have "intended", in passing the Revised Organic Act, to withhold this investigatory power from a designated legislative committee after the legislature had adjourned its legislative session sine die. But in all candor we have found neither in the terms of the Revised Organic Act nor in its legislative history any indication that the members of Congress ever adverted to the issue now before us, or had any real "intention" with respect thereto. The failure of the Congress to speak with clarity and precision on the point leaves us to deal as best we may with an ambiguous and dubious question of statutory interpretation. In these circumstances we are inclined to adopt an interpretation which we believe to be more in harmony with the declared purpose of the Congress to "give a greater degree of autonomy, economic as well as political, to the people of the Virgin Islands." S.Rep. No. 1271, 83d Cong., 2d Sess., April 29, 1954, 2 U.S.Code Cong. & Ad.News 2586. And we think it is not without significance that the interpretation which we incline to favor is in accord with the contemporaneous interpretation of the Revised Organic Act by the legislature itself, and also apparently by the governor, as we shall undertake to show. These are agencies set up in the Act to administer its provisions, and in a doubtful case the interpretation given to the Act by such agencies is entitled to considerable respect. See Fleming v. Mohawk Co., 1947, 331 U.S. 111, 116, 67 S. Ct. 1129, 91 L. Ed. 1375; United States v. American Trucking Associations, Inc., 1940, 310 U.S. 534, 549, 60 S. Ct. 1059, 84 L. Ed. 1345. Also, our favored interpretation is that of Circuit Judge Hastie, sitting in the District Court by special designation, who wrote a careful opinion in this case. We affirm the final decree of the District Court.

Much stress is laid by appellant upon various decisions of state courts interpreting the investigatory powers of their legislatures under their respective state constitutions. Decisions by the Supreme Court of California are particularly relied on. See Petition of Special Assembly Interim Committee on Public Morals of Cal. Legislature (In re Southard), Cal.1938, 83 P.2d 932, and on rehearing, 1939, 13 Cal.2d 497, 90 P.2d 304; Swing v. Riley, Cal.1938, 83 P.2d 938, and on rehearing, 1939, 13 Cal.2d 513, 90 P.2d 313. By means of a simple syllogism these decisions arrive at the conclusion contended for by appellant here.The essential reasoning of the Supreme Court of California may be seen from the following quotation:

"Under the various state constitutions, including that of California, the legislature, with the approval of the governor, has the power to legislate - that is the power to make laws; each house of the legislature has the power to initiate legislation; incidental to and implied from this power to legislate, each house has the implied and auxiliary power to appoint committees for the purpose of aiding it in the proper performance of this function; this power to appoint committees exists by implication, only because of the existence of the express power to legislate; consequently, when the power to legislate ceases, then the power to investigate for the purpose of aiding the legislature in exercising this power ceases, or stated another way, when the main power of legislating dies the incidental or implied power dies with it; that upon adjournment sine die the legislative powers of both houses of the legislature cease; that thereafter the members of the legislature have no legislative powers unless a special session is called which can only be done at the call of the governor, and at which only those matters set forth in the call may be considered; that during a session each house can function separately as to the introduction of bills, but it has no such power after adjournment; that each regular session of the legislature is composed of a different body from its predecessor; that the only lawful purpose of a committee is to investigate the facts and to report back to the body creating it; that the power conferred on a committee is a delegated power, and the legislature cannot lawfully delegate power that it itself does not possess; that neither house has the power to appoint a committee to function when the legislature itself could not act in the premises." Petition of Special Assembly Interim Committee, etc. (In re Southard), supra, 83 P.2d at page 936.

This conclusion of the California court seems to us to be an obvious non sequitur. It may be granted that a legislature loses the present power to legislate upon the adjournment of a session sine die. But its members still constitute the legislature, whose legislative powers are merely dormant and suspended between sessions, not finally terminated. Just prior to an adjournment, a matter may come up needing to be investigated by a legislative committee which could not possibly complete the investigation and report prior to adjournment. Granting that the function of such a committee is limited to investigation as an aid to possible legislation, is there any incongruity in setting such investigation afoot, with instructions to the committee to report to the legislature at its next regular or special session, or even to the succeeding legislature? Some state courts have perceived no such incongruity. See, for instance, State ex rel. Robinson v. Fluent, 1948, 30 Wash.2d 194, 191 P.2d 241. The Washington court said, 191 P.2d at page 245: "The function of investigation during the interim is an inherent power in the legislature. If there is not present in the constitution a restraint against the exercise of interim investigatory power by the legislature through joint or concurrent action, that power, which is incidental to the function of making laws, may be projected into the interim." In People v. Backer, 1920, 113 Misc. 400, 185 N.Y.S. 459, 461, the court held: "There being no constitutional inhibition upon the power of the Senate and Assembly to confer power upon the committee to sit during the recess or after the adjournment of the Legislature, the contention of the defendant that such a power could not be granted by concurrent resolution is, I think, without merit." Chief Judge Cardozo, in what was perhaps a dictum, in People ex rel. Hastings v. Hofstadter, 1932, 258 N.Y. 425, 431, 180 N.E. 106, 108, 79 A.L.R. 1208, stated: "The great weight of judicial authority sustains the power of the Legislature to invest its committees with power to function, though the session is over".

We do not stop to examine the state court decisions more in detail. They are not controlling here because we are concerned with the construction of an Act of Congress, namely, the Revised Organic Act of the Virgin Islands, 68 Stat. 497.

As background to the passage of that Act, it is relevant to refer to the situation as it existed under the Organic Act of 1936, 49 Stat. 1807, 48 U.S.C.A. § 1405 et seq. Under that earlier Act, the legislative power of the Virgin Islands was vested in the Municipal Council of St. Croix and the Municipal Council of St. Thomas and St. John, and in a so-called "Legislative Assembly of the Virgin Islands" comprising the two municipal councils in joint session, which legislative assembly was empowered to enact legislation applicable to the Virgin Islands as a whole. It was the common practice of these legislative bodies, by resolution, to authorize their respective committees to function in the interim between sessions, as well as during sessions. For instance, a resolution of the legislative assembly on August 7, 1952, established certain standing committees of the legislative assembly, with full subpoena powers as provided in § 11 of the Organic Act, 49 Stat. 1809. Such committees were instructed to make studies and investigations on their own motion or upon direction of the assembly and were empowered to recommend legislation from time to time to the assembly. Further, it was provided that the chairman of the assembly "shall determine what legislation, appointments, studies and other matters fall within the jurisdiction of the respective committees and shall make appropriate assignments to such committees whether or not the Assembly is in session."

When the Congress came to revise the Organic Act in the spring of 1954, it had under consideration a bill which, on the whole, was thought to enlarge the degree of local autonomy delegated to the people of the Virgin Islands. A few of the provisions of the bill were more restrictive, including the explicit provision of § 7(a) limiting the regular sessions of the Legislature of the Virgin Islands to a maximum of "sixty consecutive calendar days in any calendar year". 68 Stat. 500. If the Congress had intended at the same time to forbid the settled practice of the legislative bodies under the earlier Organic Act to authorize committees to function in the interim between sessions, is it not fair to expect that such restrictive purpose would also have been explicitly written into the Revised Roganic Act?

Instead of that, what did the Congress do? It abolished the old municipal councils and provided a single unicameral legislature for the whole of the Virgin Islands. And in § 6(g) it provided: "The rules of the Legislative Assembly of the Virgin Islands existing on the date of approval of this Act shall continue in force and effect for sessions of the legislature, except as inconsistent with this Act, until altered, amended, or repealed by the legislature." 68 Stat. 499-500. Unless the Revised Organic Act contained some inconsistent provision, § 6(g) thus amounted to congressional approval of the then existing resolution of the Legislative Assembly of the Virgin Islands appointing standing committees with authority to function in the interim between sessions of the assembly. The only provision of the Revised Organic Act claimed by appellant to be thus inconsistent is the one already referred to in § 7(a), restricting the regular sessions of the legislature to sixty days. But § 7(a) is only a limit on the power to legislate; it does not deal at all with the power to conduct interim investigations through appointed committees. Moreover, if appellant's argument were accepted, the same result would be reached here even if the Congress had not limited the regular legislative sessions to sixty days; that is, if the legislature, having no time limit on its power to legislate except of course the expiration of the terms of office of the legislators, should decide to shut up its legislative shop and adjourn its session since die, subject only to the possibility of recall by the governor in special session, appellant would also argue that, since there was no longer any current power to legislate after such adjournment since die, there could be no exercise in the interim of the ancillary power to investigate. Therefore, we cannot see that the sixty-day limit on the power to legislate has any bearing on the present problem one way or the other.

In fact, the Congress was not content to leave it to implication that the legislature had "inherent" power to investigate as a necessary incident to its power to legislate. It conferred upon the legislature explicitly the power to investigate. In § 6(g) the Congress provided: "The legislature shall be the sole judge of the elections and qualifications of its members, shall have and exercise all the authority and attributes, inherent in legislative assemblies, and shall have the power to institute and conduct investigations, issue subpoena to witnesses and other parties concerned, and administer oaths." 68 Stat. 499. Note that the power to investigate is conferred as a separate and distinct power, not as a power dependent for its functioning upon a presently existing power to legislate. The omission of any such limitation is, we think, quite significant.

The Revised Organic Act became law on July 22, 1954. Under it the first annual session of the Legislature of the Virgin Islands commenced on the second Monday of January, 1955. § 7(a), 68 Stat. 500. The legislature promptly concerned itself with drafting its Standing Rules, which were adopted by resolution of the legislature on February 1, 1955.In these Standing Rules the legislature provided for several so-called standing committees of the legislature, including a Committee on Finance. In § 4(a) of Rule XI, it was provided that the Committee on Finance "shall make such studies and examinations of executive departments and agencies as it deems necessary or as required by resolutions of the legislature or by law." Section 4(b) provided: "The Committee on Finance shall continue in existence during any recess of the legislature and after final adjournment and until the convening of the next legislature and shall have the same powers and duties as when the legislature is in session." Section 7 contained a more general provision, applicable to each standing committee in the legislature, instructing it to "serve as an investigating committee with power to act during the sessions of the legislature, including any recess, and after final adjournment, and until the commencement of the next legislature with authority to file its report not later than the fifth legislative day of said next legislature. The committees shall also act after final adjournment in accordance with resolutions of the legislature, and as may be prescribed by law. Each such committee shall have all the powers conferred upon investigating committees by the Rules of the legislature." Section 10 authorized each standing committee to subpoena witnesses and documemts. Subsection (a) of this section provided that, if any witness neglects or refuses to obey a subpoena or neglects or refuses to testify or to produce documents under his control, "he has committed a contempt." Subsection (b) provided that if the contempt is committed before a committee during a session of the legislature, "the committee shall report the contempt to the legislature for such action as may be deemed necessary by the legislature." Subsection (c) provided: "If the contempt is committed before a committee when the legislature is not in session, the District Court of the Virgin Islands may compel the attendance of the witness, the giving of testimony and the production of books, papers, documents and accounts, as required by the subpoena issued by the committee, on the filing by the committee of a petition to the court asking that the witness be so compelled."

Thus it appears from the foregoing provisions of the Standing Rules that the newly organized Legislature of the Virgin Islands, at its earliest opportunity, construed the Revised Organic Act as authorizing it to set up investigating committees with power to function in the interim between sessions - a continuation, in ...

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