363 U.S. 420
80 S.Ct. 1502
4 L.Ed.2d 1307
John A. HANNAH et al., Appellants,v.Margaret M. LARCHE et al.  John A. HANNAH et al., Petitioners,  v.  J. A. H. SLAWSON et al.
Nos. 549, 550.

Argued Jan. 18 and 19, 1960 on the Petition for Writ of Certiorari, theJurisdiction on Appeal, and on the Merits.
Decided June 20, 1960.
Mr. Lawrence E. Walsh, Washington, D.C., for appellants in No. 549 and for petitioners in No. 550.
Mr. Jack P. F. Gremillion, Baton Rouge, La., for appellees in No. 549.
Mr. W. M. Shaw, Homer, La., for respondents in No. 550.
Mr. Chief Justice WARREN delivered the opinion of the Court.


1
These cases involve the validity of certain Rules of Procedure adopted by the Commission on Civil Rights, which was established by Congress in 1957.1 Civil Rights Act of 1957, 71 Stat. 634, 42 U.S.C. §§ 1975—1975e, 42 U.S.C.A. §§ 1975—1975e. They arise out of the Commission's investigation of alleged Negro voting deprivations in the State of Louisiana. The appellees in No. 549 are registrars of voters in the State of Louisiana, and the respondents in No. 550 are private citizens of Louisiana.2 After having been summoned to appear before a hearing which the Commission proposed to conduct in Shreveport, Louisiana, these registrars and private citizens requested the United States District Court for the Western District of Louisiana to enjoin the Commission from holding its anticipated hearing. It was alleged, among other things, that the Commission's Rules of Procedure governing the conduct of its investigations were unconstitutional. The specific rules challenged are those which provide that the identity of persons submitting complaints to the Commission need not be disclosed, and that those summoned to testify before the Commission, including persons against whom complaints have been filed, may not cross-examine other witnesses called by the Commission. The District Court held that the Commission was not authorized to adopt the Rules of Procedure here in question, and therefore issued an injunction which prohibits the Commission from holding any hearings in the Western District of Louisiana as long as the challenged procedures remain in force. The Commission requested this Court to review the District Court's decision.3 We granted the Commission's motion to advance the cases, and oral argument was accordingly scheduled on the jurisdiction on appeal in No. 549, on the petition for certiorari in No. 550, and on the merits of both cases.


2
Having heard oral argument as scheduled, we now take jurisdiction in No. 549 and grant certiorari in No. 550. The specific questions which we must decide are (1) whether the Commission was authorized by Congress to adopt the Rules of Procedure challenged by the respondents, and (2) if so, whether those procedures violate the Due Process Clause of the Fifth Amendment.


3
A description of the events leading up to this litigation is necessary not only to place the legal questions in their proper factual context, but also to indicate the significance of the Commission's proposed Shreveport hearing. During the months prior to its decision to convene the hearing, the Commission had received some sixty-seven complaints from individual Negroes who alleged that they had been discriminatorily deprived of their right to vote. Based upon these complaints, and pursuant to its statutory mandate to 'investigate allegations in writing under oath or affirmation that certain citizens of the United States are being deprived of their right to vote and have that vote counted by reason of their color, race, religion, or national origin,'4 the Commission began its investigation into the Louisiana voting situation by making several ex parte attempts to acquire information. Thus, in March 1959, a member of the Commission's staff interviewed the Voting Registrars of Claiborne, Caddo, and Webster Parishes, but obtained little relevant information. During one of these interviews the staff member is alleged to have informed Mrs. Lannie Linton, the Registrar of Claiborne Parish, that the Commission had on file four sworn statements charging her with depriving Negroes of their voting rights solely because of their race. Subsequent to this interview, Mr. W. M. Shaw, Mrs. Linton's personal attorney, wrote a letter to Mr. Gordon M. Tiffany, the Staff Director of the Commission, in which it was asserted that Mrs. Linton knew the sworn complaints lodged against her to be false. The letter also indicated that Mrs. Linton wished to prefer perjury charges against the affiants, and Mr. Shaw therefore demanded that the Commission forward to him copies of the affidavits so that a proper presentment could be made to the grand jury. On April 14, 1959, Mr. Tiffany replied to Mr. Shaw's letter and indicated that the Commission had denied the request for copies of the sworn affidavits. Mr. Shaw was also informed of the following official statement adopted by the Commission:


4
'The Commission from its first meeting forward, having      considered all complaints submitted to it as confidential      because such confidentiality is essential in carrying out the      statutory duties of the Commission, the Staff Director is      hereby instructed not to disclose the names of complainants      or other information contained in complaints to anyone except      members of the Commission and members of the staff assigned      to process, study, or investigate such complaints.'


5
A copy of Mr. Tiffany's letter was sent to Mr. Jack P. F. Gremillion, the Attorney General of Louisiana, who had previously informed the Commission that under Louisiana law the Attorney General is the legal adviser for all voting registrars in any hearing or investigation before a federal commission.


6
Another attempt to obtain information occurred on May 13, 1959, when Mr. Tiffany, upon Commission authorization, sent a list of 315 written interrogatories to Mr. Gremillion. These interrogatories requested very detailed and specific information, and were to be answered by the voting registrars of nineteen Louisiana parishes. Although Mr. Gremillion and the Governor of Louisiana had previously assented to the idea of written interrogatories, on May 28, 1959, Mr. Gremillion sent a letter to Mr. Tiffany indicating that the voting registrars refused to answer the interrogatories. The reasons given for the refusal were that many of the questions seemed unrelated to the functions of voting registrars, that the questions were neither accompanied by specific complaints nor related to specific complaints, and that the time and research required to answer the questions placed an unreasonable burden upon the voting registrars.


7
In response to this refusal, on May 29, 1959, Mr. Tiffany sent a telegram to Mr. Gremillion, informing the latter that the interrogatories were based upon specific allegations received by the Commission, and reaffirming the Commission's position that the identity of specific complainants would not be disclosed. Mr. Tiffany's letter contained a further request that the interrogatories be answered and sent to the Commission by June 5, 1959. On June 2, 1959, Mr. Gremillion wrote a letter to Mr. Tiffany reiterating the registrars' refusal, and again requesting that the names of complainants be disclosed.


8
Finally, as a result of this exchange of correspondence, and because the Commission's attempts to obtain information ex parte had been frustrated, the Commission, acting pursuant to Section 105(f) of the Civil Rights Act of 1957,5 decided to hold the Shreveport hearing commencing on July 13, 1959.


9
Notice of the scheduled hearing was sent to Mr. Gremillion, and between June 29 and July 6, subpoenas duces tecum were served on the respondents in No. 549, ordering them to appear at the hearing and to bring with them various voting and registration records within their custody and control. Subpoenas were also served upon the respondents in No. 550. These private citizens were apparently summoned to explain their activities with regard to alleged deprivations of Negro voting rights.6


10
On July 8, 1959, Mr. Tiffany wrote to Mr. Gremillion, enclosing copies of the Civil Rights Act and of the Commission's Rules of Procedure.7 Mr. Gremillion's attention was also drawn to Section 102(h) of the Civil Rights Act, which permits witnesses to submit, subject to the discretion of the Commission, brief and pertinent sworn statements for inclusion in the record.8


11
Two days later, on July 10, 1959, the respondents in No. 549 and No. 550 filed two separate complaints in the District Court for the Western District of Louisiana. Both complaints alleged that the respondents would suffer irreparable harm by virtue of the Commission's refusal to furnish the names of persons who had filed allegations of voting deprivations, as well as the contents of the allegations, and by its further refusal to permit the respondents to confront and cross-examine the persons making such allegations. In addition, both complaints alleged that the Commission's refusals not only violated numerous provisions of the Federal Constitution, but also constituted 'ultra vires' acts not authorized either by Congress or the Chief Executive. The respondents in No. 549 also alleged that they could not comply with the subpoenas duces tecum because Louisiana law prohibited voting registrars from removing their voting records except 'upon an order of a competent court,' and because the Commission was not such a 'court.' Finally, the complaint in No. 549 alleged that the Civil Rights Act was unconstitutional because it did not constitute 'appropriate legislation within the meaning of Section (2) of the XV Amendment.'


12
Both complaints sought a temporary restraining order and a permanent injunction prohibiting the members of the Commission (a) from compelling the 'testimony from or the production of any records' by the respondents until copies of the sworn charges, together with the names and addresses of the persons filing such charges were given to the respondents;9 (b) from 'conducting any hearing pursuant to the rules and regulations adopted by' the Commission; and (c) from 'conspiring together * * * or with any other person * * * to deny complainants their rights and privileges as citizens' of Louisiana or the United States 'or to deny to complainants their right to be confronted by their accusers, to know the nature and character of the charges made against them,' and to be represented by counsel. The complaint in No. 549 also sought a declaratory judgment that the Civil Rights Act of 1957 was unconstitutional.


13
On the day that the complaints were filed, the district judge held a combined hearing on the prayers for temporary restraining orders. On July 12, 1959, he found that the respondents would suffer irreparable harm if the hearings were held as scheduled, and he therefore issued the requested temporary restraining orders and rules to show cause why a preliminary injunction should not be granted. Larche v. Hannah, D.C., 176 F.Supp. 791. The order prohibited the Commission from holding any hearings which concerned the respondents or others similarly situated until a determination was made on the motion for a preliminary injunction.


14
Inasmuch as the complaint in No. 549 attacked the constitutionality of the Civil Rights Act, a three-judge court was convened pursuant to 28 U.S.C. § 2282, 28 U.S.C.A. § 2282. Since the complaint in No. 550 did not challenge the constitutionality of the Civil Rights Act of 1957, that case was scheduled to be heard by a single district judge. That district judge was also a member of the three-judge panel in No. 549, and a combined hearing was therefore held on both cases on August 7, 1959.


15
On October 7, 1959, a divided three-judge District Court filed an opinion in No. 549. Larche v. Hannah, 177 F.Supp. 816. The court held that the Civil Rights Act of 1957 was constitutional since it 'very definitely constitutes appropriate legislation' authorized by the Fourteenth and Fifteenth Amendments and Article I, Section 2, of the Federal Constitution. Id., at page 821. The court then held that since the respondents' allegations with regard to apprisal, confrontation, and cross-examination raised a 'serious constitutional issue,' this Court's decision in Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377, required a preliminary determination as to whether Congress specifically authorized the Commission 'to adopt rules for investigations * * * which would deprive parties investigated of their rights of confrontation and cross-examination and their right to be apprised of the charges against them.' 177 F.Supp. at page 822. The court found that Congress had not so authorized the Commission, and an injunction was therefore issued. In deciding the case on the issue of authorization, the court never reached the 'serious constitutional issue' raised by the respondents' allegations.10 The injunction prohibits the Commission from holding any hearing in the Western District of Louisiana wherein the registrars, 'accused of depriving others of the right to vote, would be denied the right of apprisal, confrontation, and cross examination.'11 The single district judge rendered a decision in No. 550 incorporating by reference the opinion of the three-judge District Court, and an injunction, identical in substance to that entered in No. 549, was issued.

I.

16
We held last Term in Greene v. McElroy, supra, that when action taken by an inferior governmental agency was accomplished by procedures which raise serious constitutional questions, an initial inquiry will be made to determine whether or not 'the President or Congress, within their respective constitutional powers, specifically has decided that the imposed procedures are necessary and warranted and has authorized their use.' Id., 360 U.S. at page 507, 79 S.Ct. at page 1419. The considerations which prompted us in Greene to analyze the question of authorization before reaching the constitutional issues presented are no less pertinent in this case. Obviously, if the Civil Rights Commission was not authorized to adopt the procedures complained of by the respondents, the case could be disposed of without a premature determination of serious constitutional questions. See Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012; Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204; Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; Peters v. Hobby, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129.


17
We therefore consider first the question of authorization. As indicated above, the Commission specifically refused to disclose to the respondents the identity of persons who had submitted sworn complaints to the Commission and the specific charges contained in those complaints. Moreover, the respondents were informed by the Commission that they would not be permitted to cross-examine any witnesses at the hearing. The respondents contend, and the court below held, that Congress did not authorize the adoption of procedural rules which would deprive those being investigated by the Commission of the rights to apprisal, confrontation, and cross-examination. The court's holding is best summarized by the following language from its opinion:


18
'(W)e find nothing in the Act which expressly authorizes or      permits the Commission's refusal to inform persons, under      investigation for criminal conduct, of the nature, cause and      source of the accusations against them, and there is nothing      in the Act authorizing the Commission to deprive these      persons of the right of confrontation and cross-examination.'      177 F.Supp., at page 822.


19
After thoroughly analyzing the Rules of Procedure contained in the Civil Rights Act of 1957 and the legislative history which led to the adoption of that Act, we are of the opinion that the court below erred in its conclusion and that Congress did authorize the Commission to adopt the procedures here in question.


20
It could not be said that Congress ignored the procedures which the Commission was to follow in conducting its hearings. Section 102 of the Civil Rights Act of 1957 lists a number of procedural rights intended to safeguard witnesses from potential abuses. Briefly summarized, the relevant subdivisions of Section 102 provide that the Chairman shall make an opening statement as to the subject of the hearing; that a copy of the Commission's rules shall be made available to witnesses; that witnesses 'may be accompanied by their own counsel for the purpose of advising them concerning their constitutional rights'; that potentially defamatory, degrading, or incriminating testimony shall be received in executive session, and that any person defamed, degraded, or incriminated by such testimony shall have an opportunity to appear voluntarily as a witness and to request the Commission to subpoena additional witnesses; that testimony taken in executive session shall be released only upon the consent of the Commission; and that witnesses may submit brief and pertinent sworn statements in writing for inclusion in the record.12


21
The absence of any reference to apprisal, confrontation, and cross-examination, in addition to the fact that counsel's role is specifically limited to advising witnesses of their constitutional rights, creates a presumption that Congress did not intend witnesses appearing before the Commission to have the rights claimed by respondents. This initial presumption is strengthened beyond any reasonable doubt by an investigation of the legislative history of the Act.


22
The complete story of the 1957 Act begins with the 1956 House Civil Rights Bill, H.R. 627. That bill was reported out of the House Judiciary Committee without any reference to the procedures to be used by the Commission in conducting its hearings. H.R.Rep. No. 2187, 84th Cong., 2d Sess. During the floor debate, Representative Dies of Texas introduced extensive amendments designed to regulate the procedure of Commission hearings. 102 Cong.Rec. 13542. Those amendments would have guaranteed to witnesses appearing before the Commission all of the rights claimed by the respondents in these cases. The amendments provided, in pertinent part, that a person who might be adversely affected by the testimony of another 'shall be fully advised by the Commission as to the matters into which the Commission proposes to inquire and the adverse material which is proposed to be presented'; that a person adversely affected by evidence or testimony given at a public hearing could 'appear and testify or file a sworn statement in his own behalf'; that such a person could also 'have the adverse witness recalled' within a stated time; and that he or his counsel could cross-examine adverse witnesses.13


23
The bill, as finally passed by the House, contained all of the amendments proposed by Representative Dies. 102 Cong.Rec. 13998—13999. However, before further action could be taken, the bill died in the Senate. Although many proposals relating to civil rights were introduced in the 1957 Session of Congress, two bills became the prominent contenders for support. One was S. 83, a bill introduced by Senator Dirksen containing the same procedural provisions that the amended House bill in 1956 had contained. The other bill, H.R. 6127, was introduced by Representative Celler, Chairman of the House Judiciary Committee, and this bill incorporated the so-called House 'fair play' rules as the procedures which should govern the conduct of Commission hearings.14 After extensive debate and hearings, H.R. 6127 was finally passed by both Houses of Congress, and the House 'fair play' rules, which make no provision for advance notice, confrontation, or cross-examination, were adopted in preference to the more protective rules suggested in S. 83.15


24
The legislative background of the Civil Rights Act not only provides evidence of congressional authorization, but it also distinguishes these cases from Greene v. McElroy, supra, upon which the court below relied so heavily. In Greene there was no express authorization by Congress or the President for the Department of Defense to adopt the type of security clearance program there involved. Nor was there any legislative history or executive directive indicating that the Secretary of Defense was authorized to establish a security clearance program which could deprive a person of his government employment on the basis of secret and undisclosed information. Therefore, we concluded in Greene that because of the serious constitutional problems presented, mere acquiescence by the President or the Congress would not be sufficient to constitute authorization for the security clearance procedures adopted by the Secretary of Defense. The facts of this case present a sharp contrast to those before the Court in Greene. Here, we have substantially more than the mere acquiescence upon which the Government relied in Greene. There was a conscious, intentional selection by Congress of one bill, providing for none of the procedures demanded by respondents, over another bill, which provided for all of those procedures. We have no doubt that Congress' consideration and rejection of the procedures here at issue constituted an authorization to the Commission to conduct its hearings according to the Rules of Procedure it has adopted, and to deny to witnesses the rights of apprisal, confrontation, and cross-examination.

II.

25
The existence of authorization inevitably requires us to determine whether the Commission's Rules of Procedure are consistent with the Due Process Clause of the Fifth Amendment.16


26
Since the requirements of due process frequently vary with the type of proceeding involved, e.g., compare Opp Cotton Mills, Inc. v. Administrator, 312 U.S. 126, 152, 61 S.Ct. 524, 536, 85 L.Ed. 624, with Interstate Commerce Comm. v. Louisville & N.R. CO., 227 U.S. 88, 91, 33 S.Ct. 185, 186, 57 L.Ed. 431, we think it is necessary at the outset to ascertain both the nature and function of this Commission. Section 104 of the Civil Rights Act of 1957 specifies the duties to be performed by the Commission. Those duties consist of (1) investigating written, sworn allegations that anyone has been discriminatorily deprived of his right to vote; (2) studying and collecting information 'concerning legal developments constituting a denial of equal protection of the laws under the Constitution'; and (3) reporting to the President and Congress on its activities, findings, and recommendations.17 As is apparent from this brief sketch of the statutory duties imposed upon the Commission, its function is purely investigative and fact-finding. It does not adjudicate. It does not hold trials or determine anyone's civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make determinations depriving anyone of his life, liberty, or property. In short, the Commission does not and cannot take any affirmative action which will affect an individual's legal rights. The only purpose of its existence is to find facts which may subsequently be used as the basis for legislative or executive action.


27
The specific constitutional question, therefore, is whether persons whose conduct is under investigation by a governmental agency of this nature are entitled, by virtue of the Due Process Clause, to know the specific charges that are being investigated, as well as the identity of the complainants,18 and to have the right to crossexamine those complainants and other witnesses. Although these procedures are very desirable in some situations, for the reasons which we shall now indicate, we are of the opinion that they are not constitutionally required in the proceedings of this Commission.


28
'Due process' is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. Thus, when governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process. On the other hand, when governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used. Therefore, as a generalization, it can be said that due process embodies the differing rules of fair play, which through the years, have become associated with differing types of proceedings. Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account. An analysis of these factors demonstrates why it is that


29
It is probably sufficient merely to indicate that the rights claimed by respondents are normally associated only with adjudicatory proceedings, and that since the Commission does not adjudicate it need not be bound by adjudicatory procedures. Yet, the respondents contend and the court below implied, that such procedures are required since the Commission's proceedings might irreparably harm those being investigated by subjecting them to public opprobrium and scorn, the distinct likelihood of losing their jobs, and the possibility of criminal prosecutions. That any of these consequences will result is purely conjectural. There is nothing in the record to indicate that such will be the case or that past Commission hearings have had any harmful effects upon witnesses appearing before the Commission. However, even if such collateral consequences were to flow from the Commission's investigations, they would not be the result of any affirmative determinations made by the Commission, and they would not affect the legitimacy of the Commission's investigative function.19


30
On the other hand, the investigative process could be completely disrupted if investigative hearings were transformed into trial-like proceedings, and if persons who might be indirectly affected by an investigation were given an absolute right to cross-examine every witness called to testify. Fact-finding agencies without any power to adjudicate would be diverted from their legitimate duties and would be plagued by the injection of collateral issues that would make the investigation interminable. Even a person not called as a witness could demand the right to appear at the hearing, cross-examine any witness whose testimony or sworn affidavit allegedly defamed or incriminated him, and call an unlimited number of witnesses of his own selection.20 This type of proceeding would make a shambles of the investigation and stifle the agency in its gathering of facts.


31
In addition to these persuasive considerations, we think it is highly significant that the Commission's procedures are not historically foreign to other forms of investigation under our system. Far from being unique, the Rules of Procedure adopted by the Commission are similar to those which, as shown by the Appendix to this opinion,21 have traditionally governed the proceedings of the vast majority of governmental investigating agencies.


32
A frequently used type of investigative agency is the legislative committee. The investigative function of such committees is as old as the Republic.22 The volumes written about legislative investigations have proliferated almost as rapidly as the legislative committees themselves, and the courts have on more than one occasion been confronted with the legal problems presented by such committees.23 The procedures adopted by legislative investigating committees have varied over the course of years. Yet, the history of these committees clearly demonstrates that only infrequently have witnesses appearing before congressional committees been afforded the procedural rights normally associated with an adjudicative proceeding. In the vast majority of instances, congressional committees have not given witnesses detailed notice or an opportunity to confront, cross-examine and call other witnesses.24


33
The history of investigations conducted by the executive branch of the Government is also marked by a decided absence of those procedures here in issue.25 The best example is provided by the administrative regulatory agencies. Although these agencies normally make determinations of a quasi-judicial nature, they also frequently conduct purely fact-finding investigations. When doing the former, they are governed by the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. §§ 1001—1011, 5 U.S.C.A. §§ 1001—1011, and the parties to the adjudication are accorded the traditional safeguards of a trial. However, when these agencies are conducting nonadjudicative, fact-finding. Investigations, rights such as apprisal, confrontation, and cross-examination generally do not obtain.


34
A typical agency is the Federal Trade Commission. its rules draw a clear distinction between adjudicative proceedings and investigative proceedings. 16 CFR, 1958 Supp., § 1.34. Although the latter are frequently initiated by complaints from undisclosed informants, id., §§ 1.11, 1.15, and although the Commission may use the information obtained during investigations to initiate adjudicative proceedings, id., § 1.42, nevertheless, persons summoned to appear before investigative proceedings are entitled only to a general notice of 'the purpose and scope of the investigation,' id., § 1.33, and while they may have the advice of counsel, 'counsel may not, as a matter of right, otherwise participate in the investigation.' Id., § 1.40. The reason for these rules is obvious. The Federal Trade Commission could not conduct an efficient investigation if persons being investigated were permitted to convert the investigation into a trial. We have found no authorities suggesting that the rules governing Federal Trade Commission investigations violate the Constitution, and this is understandable since any person investigated by the Federal Trade Commission will be accorded all the traditional judicial safeguards at a subsequent adjudicative proceeding, just as any person investigated by the Civil Rights Commission will have all of these safeguards, should some type of adjudicative proceeding subsequently by instituted.


35
Although regulatory agency which distinguishes between adjudicative and investigative proceedings is the Securities and Exchange Commission. This Commission conducts numerous investigations, many of which are initiated by complaints from private parties. 17 CFR § 202.4. Although the Commission's Rules provide that parties to adjudicative proceedings shall be given detailed notice of the matters to be determined, id., 1959 Supp., § 201.3, and a right to cross-examine witnesses appearing at the hearing, id., § 201.5, those provisions of the Rules are made specifically inapplicable to investigations, id., § 201.20,26 even though the Commission is required to initiate civil or criminal proceedings if an investigation discloses violations of law.27 Undoubtedly, the reason for this distinction is to prevent the sterilization of investigations by burdening them with trial-like procedures.


36
Another type of executive agency which frequently conducts investigations is the presidential commission. Although a survey of these commissions presents no definite pattern of practice, each commission has generally been permitted to adopt whatever rules of procedure seem appropriate to it,28 and it is clear that many of the most famous presidential commissions have adopted rules similar to those governing the proceedings of the Civil Rights Commission.29 For example, the Roberts Commission established in 1941 to ascertain the facts relating to the Japanese attack upon Pearl Harbor, and to determine whether the success of the attack resulted from any derelictions of duty on the part of American military personnel, did not permit any of the parties involved in the investigation to cross-examine other witnesses. In fact, many of the persons whose conduct was being investigated were not represented by counsel and were not present during the interrogation of other witnesses. Hearings before the Joint Committee on the Investigation of the Pearl Harbor Attack, 79th Cong., 1st Sess., pts. 22—25.


37
Having considered the procedures traditionally followed by executive and legislative investigating agencies, we think it would be profitable at this point to discuss the oldest and, perhaps, the best known of all investigative bodies, the grand jury. It has never been considered necessary to grant a witness summoned before the grand jury the right to refuse to testify merely because he did not have access to the identity and testimony of prior witnesses. Nor has it ever been considered essential that a person being investigated by the grand jury be permitted to come before that body and cross-examine witnesses who may have accused him of wrongdoing. Undoubtedly, the procedural rights claimed by the respondents have not been extended to grand jury hearings because of the disruptive influence their injection would have on the proceedings, and also because the grand jury merely investigates and reports. It does not try.


38
We think it is fairly clear from this survey of various phases of governmental investigation that witnesses appearing before investigating agencies, whether legislative, executive, or judicial, have generally not been accorded the rights of apprisal, confrontation, or cross-examination. Although we do not suggest that the grand jury and the congressional investigating committee are identical in all respects to the Civil Rights Commission,30 we mention them, in addition to the executive agencies and commissions created by Congress, to show that the rules of this Commission are not alien to those which have historically governed the procedure of investigations conducted by agencies in the three major branches of our Government. The logic behind this historical practice was recognized and described by Mr. Justice Cardozo's landmark opinion in Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796. In that case, the Court was concerned with the type of hearing that the Tariff Commission was required to hold when conducting its investigations. Specifically, the Court was asked to decide whether the Tariff Act of 1922, 42 Stat. 858, gave witnesses appearing before the Commission the right to examine confidential information in the Commission files and to cross-examine other witnesses testifying at Commission hearings. Although the Court did not phrase its holding in terms of due process, we think that the following language from Mr. Justice Cardozo's opinion is significant:


39
'The Tariff Commission advises; these others ordain. There is      indeed this common bond that all alike are instruments in a      governmental process which according to the accepted      classification is legislative, not judicial. * * * Whatever      the appropriate label, the kind of order that emerges from a      hearing before a body with power to ordain is one that      impinges upon legal rights in a very different way from the      report of a commission which merely investigates and advises.      The traditionary forms of hearing appropriate to the one body      are unknown to the other. What issues from the Tariff      Commission as a report and recommendation to the President,      may be accepted, modified, or rejected. If it happens to be      accepted, it does not bear fruit in anything that trenches      upon legal rights.' 288 U.S., at page 318, 53 S.Ct. at page      359.


40
And in referring to the traditional practice of investigating bodies, Mr. Justice Cardozo had this to say:


41
'(W)ithin the meaning of this act the 'hearing' assured to      one affected by a change of duty does not include a privilege      to ransack the records of the Commission, and to subject its      confidential agents to an examination as to all that they      have learned. There was no thought to revolutionize the practice of investigating      bodies generally, and of this one in particular.' Id., 288      U.S. at page 319, 53 S.Ct. at page 360. (Emphasis supplied.)


42
Thus, the purely investigative nature of the Commission's proceedings, the burden that the claimed rights would place upon those proceedings, and the traditional procedure of investigating agencies in general, leads us to conclude that the Commission's Rules of Procedure comport with the requirements of due process.31


43
Nor do the authorities cited by respondents support their position. They rely primarily upon Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 999, 82 L.Ed. 1129; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817; and Greene v. McElroy, supra. Those cases are all distinguishable in that the government agency involved in each was found by the Court to have made determinations in the nature of adjudications affecting legal rights. Thus, in Morgan, the action of the Secretary of Agriculture in fixing the maximum rates to be charged by market agencies at stockyards was challenged. In voiding the order of the Secretary for his failure to conduct a trial-like hearing, the Court referred to the adjudicatory nature of the proceeding:


44
'Congress, in requiring a 'full hearing,' had regard to      judicial standards—not in any technical sense but with      respect to those fundamental requirements of fairness which      are of the essence of due process in a proceeding of a      judicial nature.' 304 U.S. at page 19, 58 S.Ct. at page 777.


45
Likewise, in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 140—141, 71 S.Ct. 624, 632—633, 95 L.Ed. 817, this Court held that the Attorney General's action constituted an adjudication. Finally, our decision last year in Greene v. McElroy lends little support to the respondents' position. The governmental action there reviewed was certainly of a judicial nature. The various Security Clearance Boards involved in Greene were not conducting an investigation; they were determining whether Greene could have a security clearance—a license in a real sense, and one that had a significant impact upon his employment. By contrast, the Civil Rights Commission does not make any binding orders or issue 'clearances' or licenses having legal effect. Rather, it investigates and reports leaving affirmative action, if there is to be any, to other governmental agencies where there must be action de novo.


46
The respondents have also contended that the Civil Rights Act of 1957 is inappropriate legislation under the Fifteenth Amendment. We have considered this argument, and we find it to be without merit. It would unduly lengthen this opinion to add anything to the District Court's disposition of this claim. See 177 F.Supp., at pages 819—821.


47
Respondents' final argument is that the Commission's hearings should be governed by Section 7 of the Administrative Procedure Act, 60 Stat. 241, 5 U.S.C. § 1006, 5 U.S.C.A. § 1006, which specifies the hearing procedures to be used by agencies falling within the coverage of the Act. One of those procedures is the right of every party to conduct 'such cross-examination as may be required for a full and true disclosure of the facts.' However, what the respondents fail to recognize is that Section 7, by its terms, applies only to proceedings under Section 4, 60 Stat. 238, 5 U.S.C. § 1003, 5 U.S.C.A. § 1003 (rule making), and Section 5, 60 Stat. 239, 5 U.S.C. § 1004, 5 U.S.C.A. § 1004 (adjudications), of the Act. As we have already indicated, the Civil Rights Commission performs none of the functions specified in those sections.


48
From what we have said, it is obvious that the District Court erred in both cases in enjoining the Commission from holding its Shreveport hearing. The court's judgments are accordingly reversed, and the cases are remanded with direction to vacate the injunctions.


49
Reversed and remanded.


50
(For opinion of Mr. Justice FRANKFURTER, concurring in the result, see 363 U.S. at page 486, 80 S.Ct. at page 1542.)


51
(For concurring opinion of Mr. Justice HARLAN, joined by Mr. Justice CLARK, see 363 U.S. at page 493, 80 S.Ct. at page 1542.)


52
(For dissenting opinion of Mr. Justice DOUGLAS, joined by Mr. Justice BLACK, see post, 363 U.S. at page 493, 80 S.Ct. at page 1546.) APPENDIX TO OPINIONOF THE COURT1


53
(Footnotes at end of table)

Extent of agency's
Scope of agency's    subpoena power in

54
Agency   investigative authority   investigative


55
proceedings


56
Executive and       The Commission is authorized   The Commission may


57
Administrative      to "make such studies and   subpoena any person


58
Agencies2          investigations, * * * and hold   to appear and


59
Atomic Energy       such meetings or hearings as   testify or produce


60
Commission.         (it) may deem necessary or   documents "at any


61
proper to assist it in


62
designated place."


63
exercising" any of its statutory

68 Stat. 948, 42

64
functions. 68 Stat. 948, 42 U.S.C.


65
U.S.C. § 2201(c),


66
§ 2201(c).

The right, if any, of
The type of notice   persons affected by

67
required to         an investigation to  Miscellaneous


68
be given in         cross-examine others Comments


69
investigative       testifying at


70
proceedings3        investigative

proceedings4

71
This is not         This is not specified The Commission's


72
specified by        by statute. The       Rules of Practice


73
statute. The        Commission's Rules of draw a sharp


74
Commission's Rules  Practice do not       distinction between


75
of Practice          require that those    informal and formal


76
provide that (t)he  summoned to appear before   hearings. Formal hearings


77
procedure to be     informal hearings     are used only in "cases of


78
followed in         be given the right to adjudication," 10 CFR


79
informal hearings   cross-examine other   § 2.708, and parties


80
shall be such as    witnesses. Rather,    to the hearings are


81
will best serve     the Commission is     given detailed notice


82
the purpose of      given the discretion  of the subject of the


83
the hearing.        to adopt those         hearing, id., §


84
10 CFR § 2.720.     procedures which "will best   2.735, as well as the


85
The Rules of        serve the purpose of   right to cross-examine


86
Practice do not     the hearing." 10 CFR  witnesses, id., §


87
require any         § 2.720.              2.747. Informal


88
specific type                              hearings   are used in


89
of notice to                               investigations   "for the


90
be given in                                purposes of   obtaining


91
informal hearings.                         necessary or useful


92
Ibid.                                      information, and


93
affording


94
participation by


95
interested persons,


96
in the formulation,


97
amendment, or


98
rescission of


99
rules and


100
regulations."


101
Id., § 2.708.

The safeguards which

102
are accorded in the


103
formal adjudicative


104
hearings


105
are not mentioned


106
in the Commission's

Rule relating to

107
informal hearings.


108
Id., § 2.720.

Extent of agency's
Scope of agency's    subpoena power in

109
Agency   investigative authority   investigative


110
proceedings


111
Federal             (1) The Commission is authorized   (1) The Commission


112
Communications      to investigate any matters   may "subpena the


113
Commission.         contained in a complaint "in   attendance and


114
such manner and by such means


115
testimony of


116
as it shall deem proper." 48


117
witnesses and the

Stat. 1073, 47 U.S.C. § 208, 47

118
production of all


119
U.S.C.A. § 208.       books, papers,


120
(2) The Federal Communications


121
schedules of

Commission was also authorized

122
charges, contracts,


123
to conduct a special investigation


124
agreements and


125
of the American Telephone and


126
documents relating

Telegraph Company, and to obtain

127
to any matter under


128
information concerning the company's


129
investigation." 48


130
history and structure, the services

Stat. 1096, 47

131
rendered by it, its failure


132
to U.S.C. § 409(e),


133
reduce rates, the effect of

47 U.S.C.A. § 409

134
monopolistic control on the


135
(e).


136
company, the methods of


137
(2) The Commission


138
competition engaged in by the


139
was also given the


140
company, and the company's


141
subpoena power by


142
attempts to influence public


143
the statute


144
opinion by the use of propaganda


145
authorizing the


146
49 Stat. 43.


147
the American

Telephone and

148
Telegraph Company.

49 Stat. 45

149
Federal Trade       (1) The Commission is authorized   (1) The Commission


150
Commission.         to investigate "the   may "subpoena the


151
organization, business, conduct,


152
attendance and


153
practices, and management of any


154
testimony of


155
corporation engaged in


156
witnesses and the


157
commerce"; to make an production of all


158
investigation of the manner in


159
such documentary


160
which antitrust decrees are being


161
evidence relating to


162
carried out; to investigate and


163
any matter under


164
report the facts relating to any


165
investigation. 38

The right, if any, of
The type of notice   persons affected by

166
required to         an investigation to  Miscellaneous


167
be given in         cross-examine others Comments


168
investigative       testifying at


169
proceedings3        investigative

proceedings4

170
This is not         This is not specified It should b  noted


171
specified by        by statute. Nor do    that the


172
statute. The        the Commission's      Commission's Report


173
Commission's Rules  Rules of Practice     on the Telephone


174
of Practice do      refer to cross-examination   Investigation made no


175
not specify the     in investigative      mention of the type


176
type of notice      proceedings. Therefore,   of notice, if any, given to


177
to be given in      whether persons       those summoned to appear at


178
investigative       appearing at an       the investigation.


179
proceedings.        investigation have the   Nor was there any


180
However, the Rules  privilege of cross-   reference to cross-


181
do provide that     examining witnesses   examination. The


182
the (p)rocedures    apparently depends upon   Commission did permit


183
to be followed by   whether the           the Company "to


184
the Commission,     Commission is of the  submit statements


185
shall, unless       opinion that          in writing


186
specifically        cross-examination     pointing out


187
prescribed * * * in                       "will best serve the   any inaccuracies


188
the (Rules), be     such purposes of      such in factual data


189
as in the opinion   proceeding." 47 CFR § statistics in


190
of the Commission   1.10. It should also be   the reports


191
will best serve the                       noted that even in   introduced in


192
purposes of * * *    that portion of the   the hearings or


193
(any investigative)                       Commission's Rules   in any testimony


194
proceeding. 47 CFR  relating to adjudicative   in connection


195
§ 1.10.             proceedings, there    therewith, provided


196
is no specific provision


197
that such statements


198
relating to cross-    were confined to


199
examination. Id. § §  the presentation

1.101-1.193.          of facts and that no

200
attempt would be


201
be made therein to


202
draw conclusions


203
therefrom." H. R. Doc.


204
No. 340, 76th Cong.,


205
1st Sess xviii.


206
(1) This is not     (1) This is not       (1) It is interesting


207
specified by        specified by statute. The   to note that the


208
statute. The        Commission's Rules of Commission's Rules


209
Commission's Rules  Practice provide that of Practice draw


210
of Practice          a person required to an express and sharp


211
provide that        testify in an          distinction between


212
(a)ny party under   investigative proceeding   investigative and


213
investigation       "may be accompanied   adjudicative


214
compelled to        and advised by        proceedings and the


215
furnish information                       counsel, but counsel may                  Commission's Rules


216
or documentary      not, as a matter of   relating to notice


217
evidence shall be   right, otherwise      and cross-examination


218
advised with respect                      participate in the   in investigative

Extent of agency's
Scope of agency's    subpoena power in

219
Agency   investigative authority   investigative


220
proceedings


221
alleged violations of the


222
Stat. 722, 15 U.S.C.


223
Federal             antitrust Acts by any § 49, 15 U.S.C.A.


224
Trade               corporation; and      § 49.


225
Commission -        "to investigate * * * (2) The Commission


226
Continued.          trade conditions in and with   was also given the


227
foreign countries where


228
subpoena power


229
associations, combinations,


230
under the statute


231
or practices of manufacturers,


232
authorizing the


233
merchants, or traders, or other


234
investigation of the


235
conditions, may affect the foreign


236
motor vehicle


237
trade of the United States." 38


238
industry. 52

Stat. 721-722, 15 U.S.C. § 46, 15

239
Stat. 218.


240
U.S.C.A. § 46.


241
(2) The Commission was also


242
authorized to conduct a special


243
investigation of the motor


244
vehicle industry to determine (a)


245
"the extent of concentration of


246
control and of monopoly in the


247
manufacturing, warehousing,


248
distribution, and sale of


249
automobiles, accessories, and


250
parts, including methods and


251
devices used by manufacturers


252
for obtaining and maintaining


253
their control or monopoly * * *


254
and the extent, if any, to which


255
fraudulent, dishonest, unfair,


256
and injurious methods (were)


257
employed, including combinations,


258
monopolies, price fixing,


259
or unfair trade practices"; and


260
(b) " the extent to which any


261
of the antitrust laws of the

United States (were) being

262
violated." 52 Stat. 218.

The right, if any, of
The type of notice   persons affected by

263
required to         an investigation to  Miscellaneous


264
be given in         cross-examine others Comments


265
investigative       testifying at


266
proceedings3        investigative

proceedings4

267
to the purpose and  investigation." 16 CFR,1959   proceedings are very


268
scope of the        Supp., § 1.40.        similar to those adopted


269
investigation.      over, while the Rules by the Civil Rights


270
16 CFR, 1959 Supp.,                       of Practice make no   Commission.


271
§ 1.33.             mention of the right  (2) It should also be


272
(2) The Commission's                      to cross-examine   observed that FTC


273
Report on the Motor                       witnesses in   investigations may be


274
Vehicle Industry did                      investigative proceedings,         be initiated "upon


275
not indicate what   see id., § 1.31-1.42, such a   complaint by members


276
type of notice, if  right is specifically of the consuming


277
any, was given to    given to parties in an   public, businessmen,


278
those summoned to   adjudicative          or the concerns aggrieved


279
testify at the      proceeding. Id., § 3.16.   by unfair practices," 16


280
investigation.      (2) The Commission's  CFR, 1959 Supp., §


281
H. R. Doc. No. 468,                       Report on the Motor   1.11, and that


282
76th Cong., 1st     Vehicle Industry did  complaints received


283
Sess. Presumably,   not refer to cross-   by the Commission


284
the Commissioner's  examination. H.R. Doc.   may charge "any


285
regular Rules of    No. 468, 76th Cong.,  violation of law over


286
Practice obtained.  1st Sess. Presumably, which the Commission


287
the Commission's      has jurisdiction." Id.,


288
regular Rules of Practice


289
§ 1.12


290
obtained.             (3) Also relevant to


291
our inquiry is the


292
fact that the

Commission

293
does not "publish or


294
divulge the name of


295
an applicant or


296
complaining party."


297
Id., § 1.15.


298
(4)Finally, it is


299
important to observe


300
that the FTC,


301
unlike

The Civil Rights
Commission, has the

302
a thority to


303
commence


304
adjudicative


305
proceedings


306
based upon the


307
material obtained by


308
means of


309
investigative


310
proceedings. Id.,


311
§ 1.42.

Extent of agency's
Scope of agency's    subpoena power in

312
Agency   investigative authority   investigative


313
proceedings


314
National Labor      Under the National Labor   "For the purpose of


315
Relations           Relations Act, the Board is   all hearings and


316
Board.              given the power to investigate   investigations * * *


317
petitions and charges submitted


318
the Board (may)


319
to it relating to union


320
* * * copy any


321
representation and unfair labor


322
evidence of any


323
practices. 61 Stat. 144, 149, 29


324
person being


325
U.S.C. §§ 159(c), 160(l), 29 U.S.


326
investigated or


327
C.A. §§ 159(c), 160(l).


328
proceeded against


329
that relates to any


330
matter under


331
investigation," and


332
it may also issue


333
subpoenas requiring


334
the attendance and


335
testimony of


336
witnesses in any


337
proceeding or


338
investigation. 61


339
Stat. 150, 29 U.S.C.


340
§ 161, 29 U.S.C.A.


341
§ 161.


342
Securities and      (1) Under the Securities Act of   All of the Acts


343
Exchange            1933, as amended, the which authorize


344
Commission.         Commission is authorized to   the Commission


345
conduct "all investigations to conduct


346
which, * * are necessary and


347
investigations also


348
proper for the enforcement of"


349
bestow upon it the


350
the Act. 48 Stat. 85, 15 U.S.C.


351
the power to


352
§ 77s(b), 15 U.S.C.A. § 77s(b).


353
subpoena witnesses,


354
(2) The Securities Exchange


355
compel their

Act of 1934 authorizes the

356
attendance, and

Commission to "make such

357
require the


358
investigations as it  production of any


359
deems necessary to    any books,


360
determine whether correspondence,


361
any person has        memoranda,


362
violated or is        contracts,


363
about to violate any  agreements,


364
provisions of (the Act)


365
and other records


366
or any rule or regulation


367
which are relevant


368
thereunder." 48 Stat. to the investigation.


369
899, 15 U.S.C. § 78u (a),

Securities Act of

370
15 U.S.C.A. § 78 (a). 1933, 48 Stat. 85,


371
(3) The Public Utility Holding


372
15 U.S.C. § 77s (b),

Company Act of 1935 empowers

373
15 U.S.C.A. §


374
the Commission to     77c (b);


375
"investigate any facts,

Securities Exchange
The right, if any, of
The type of notice   persons affected by

376
required to         an investigation to  Miscellaneous


377
be given in         cross-examine others Comments


378
investigative       testifying at


379
proceedings3        investigative

proceedings4

380
This is not            This is not specified

It should be noted

381
specified by        by statute. The       that the National


382
statute. The        Board's Statements of Labor Relations


383
Board's Statements  Procedure and Rules   Board may use the


384
of Procedure and    and Regulations       information collected


385
Rules and Regulation                      provide for the right   to during preliminary


386
provide for the     cross-examine          investigations to


387
preliminary         witnessess at formal, initiate adjudicative


388
investigation of    adjudicative hearings, 29   proceedings, 61 Stat. 149,


389
all petitions and   CFR, 1960 Supp., §§   29 U.S.C.§ 160(l), 29


390
charges received    101.10, 102.38. 102.66,   U.S.C.A. § 160 (l).


391
by the Board.       102.86, 102,90, but   The Commission on Civil


392
Although a copy of  there is no such      Rights has no such


393
the initial charge  provision with regard power. Moreover, the


394
may be served upon  preliminary            Board, unlike the


395
an alleged violater,                      investigations. Id., § §                    Civil Rights Commission,


396
there is no         101.4, 101.18,101.22, may use the


397
specific rule       101.27,101.32, 102.63,   information obtained


398
requiring the Board                       102.77, 102.85.   by it through


399
to give notice of    investigations to


400
the preliminary      petition the federal


401
investigation. See   courts for appropriate


402
29 CFR, 1960 Supp.,                        injunctive relief, 61


403
§§ 101.4,            Stat. 149, 29

101.18, 101.22,      U.S.C. § 160(l), 29

404
101.27, 101.32,      U.S.C.A. § 160(l).


405
102.63, 102.77,


406
102.85.


407
This is not         This is not specified The Securities


408
specified by.       by statute. The       and Exchange


409
statute. Nor do     Commission's Rules of Commission's procedures


410
the Commission's    Practice make no      for investigative


411
Rules of Practice   mention of the right  proceedings are very


412
relating to formal  to cross-examine      similar to those of


413
investigations make                       witnesses in   investigative the Civil Rights


414
any mention of the  proceedings. 17 CFR   Commission.


415
type of notice      § 202.4. Parties are  Investigations may


416
which must be given                       given the right to   be initiated upon


417
in such proceedings.                      cross-examine witnesses   complaints received from


418
17 CFR § 202.4.     in adjudicative       members of the public,


419
The Commission's    proceedings, id., §   and these complaints


420
Rules do provide    201.5, but this        may contain specific


421
for the giving      provision is made      charges of illegal


422
of notice in        specifically inapplicable    conduct. 17 CFR §


423
adjudicative        to investigative      202.4. It should be


424
proceedings, id.,   proceedings. Id., § 201.20.   noted, however, that


425
1959 Supp., § 201.3,                       the Securities and


426
but this provision                         Exchange


427
is made                                    Commission,


428
specifically                               unlike the


429
inapplicable to                            Civil Rights


430
investigative                              Commission, is an


431
proceedings.                               adjudicatory body,


432
Id., § 210.20                              and it may use the

Extent of agency's
Scope of agency's    subpoena power in

433
Agency   investigative authority   investigative


434
proceedings


435
Securities          conditions, practices,   Act of 1934, 48


436
and Exchnage        or matters which it may   Stat. 900, 15 U.S.C.


437
Commission -        deem necessary or     § 78u (b),


438
Continued.          appropriate to determine   15 U.S.C.A.


439
whether any person has


440
§ 78u (b); Public


441
violated or is about  Utility Holding


442
to violate any provision

Company Act of

443
of (the Act) or any   1935, 49 Stat. 831,


444
rule or regulation    15 U.S.C. § 79r (c),


445
thereunder, or to aid in the

15 U.S.C.A. § 78r

446
enforcement of the provisions


447
(c); Trust Indenture


448
of (the Act), in the prescribing

Act of 1939, 53

449
of rules and regulations


450
Stat.1174 15 U.S.C.


451
thereunder, or in obtaining


452
§ 77uuu (a), 15


453
information to serve as a

U.S.C.A. § 77uuu

454
basis for recommending further


455
(a); Investment


456
legislation concerning the


457
Company Act of 1940,


458
matters to which (the Act)

54 Stat. 842, 15

459
relates." 49 Stat. 831, 15 U.S.C.


460
§ 80a-41(b).


461
U.S.C. § 79r (a), 15 U.S.C.A.

15 U.S.C.A. § 80a-41

462
§ 79r (a).            (b); Investment


463
(4) The Trust Indenture Act of

Advisers Act of 1940
1939 authorizes the   54 Stat. 853, 15
Commission to conduct "any

464
U.S.C. § 80b-9(b).15.


465
investigation * * * which


466
U.S.C.A. § 805-9(b).


467
* * * is necessary and proper


468
for the enforcement of" the


469
Act. 53 Stat. 1174, 15 U.S.C.


470
§ 77uuu (a), 15 U.S.C.A. §


471
77 uuu (a).


472
(5) The Investment Company

Act of 1940 gives the
Commission the power to

473
"make such investigations as


474
it deems necessary to


475
determine whether any person


476
has violated or is about to


477
violate any provision of


478
* * * (the Act) or of any


479
rule, regulation, or order


480
thereunder, or to determine


481
whether any action in any


482
court or any proceeding


483
before the Commission shall


484
be instituted under * * *


485
(the Act) against a particular


486
person or persons, or with


487
respect to a particular


488
person or persons, or with


489
respect to a particular


490
transaction or transactions."


491
54 Stat. 842, 15 U.S.C. §


492
80a-41(a), 15 U.S.C.A. §


493
80a-41(a).


494
(6) Finally, under the

Investment Advisers Act of
1940, the Commission is

495
authorized to determine by

The right, if any, of
The type of notice   persons affected by

496
required to         an investigation to  Miscellaneous


497
be given in         cross-examine others Comments


498
investigative       testifying at


499
proceedings3        investigative

proceedings4

500
information gathered


501
through


502
investigative


503
proceedings to


504
initiate


505
"administrative


506
proceedings looking


507
to the imposition of


508
remedial sanctions,


509
* * * (or) injuction


510
proceedings in the


511
courts, and, in the


512
case of a willful


513
violation," it may


514
refer the "matter to


515
the Department of

Justice for criminal

516
prosecution," Ibid.

See also Securities

517
Act of 1933,


518
48 Stat. 86,


519
15 U.S.C.


520
§ 77t (b),


521
15 U.S.C.A,


522
§ 77t (b);

Securities
Exchange Act of

523
1934, 48 Stat.


524
900 15 U.S.C.


525
§ 78u (e),


526
15 U.S.C.A,


527
§ 78u (e); Public

Utility Holding

528
Company Act of 1935,


529
49 Stat.


530
832, 15 U.S.C.


531
§ 79r (f),


532
15 U.S.C.A.


533
§ 79r (f):

Investment Company

534
Act of 1940.


535
54 Stat.


536
843, 15 U.S.C.


537
§ 80a-41


538
(e), 15 U.S.C.A.


539
§ 80a-

41 (e): Investment
Advisers Act of

540
1940, 54 Stat. 854,


541
15 U.S.C. §


542
80b-9(e),


543
15 U.S.C.A.


544
§ 80b-9(e).

Extent of agency's
Scope of agency's    subpoena power in

545
Agency   investigative authority   investigative


546
proceedings


547
Securities          investigation whether "the


548
and Exchange        provisions of * * * (the Act)


549
Commission -        or of any rule or regulation

Continued           prescribed under the

550
the authority thereof, have been or


551
are about to be violated by any


552
person." 54 Stat. 853, 15 U.S.C.


553
§ 80b-9(a), 15 U.S.C.A.


554
§ 80b-9(a).


555
Office of Price     The Defense Production Act of   The Defense


556
Stabilization.5     1950 authorized the President to   Production Act of


557
"issue regulations and orders

1950 conferred upon

558
establishing a ceiling or


559
the President the


560
ceilings on the price, rental,


561
power, by * * *


562
commission,           margin,


563
"subpena, or


564
rate, fee, charge,    otherwise, to


565
or allowance paid or   obtain such


566
received on the sale or delivery,


567
information from,


568
or the purchase or receipt,


569
require such reports


570
by or to any person, of any


571
and the keeping of


572
material or service, and at


573
such records by,


574
the same time * * issue


575
make such inspection


576
regulations and orders


577
of the books,


578
stabilizing wages,    records, and


579
salaries, and other   other writings,


580
compensation in accordance


581
premises or property


582
with provisions of" the


583
of, and take the


584
Act. 64 Stat. 803, 50 U.S.C.A.


585
sworn testimony of,


586
Appendix, § 2102(b). This * * *


587
any person as


588
authority was delegated to the


589
may be necessary or

Economic Stabilization

590
appropriate, in his


591
Adminstrator by Exec. Order No.


592
discretion, to the

10161, 15 Fed. Reg. 6105, 50

593
enforcement or the


594
U.S.C.A. Appendix, § 2071 note.


595
administration of

The Administrator in turn

596
(the) Act and the


597
delegated the duty of issuing


598
regulations or orders


599
price regulations to the Office


600
issued thereunder."


601
of Price Stabilization. Gen. Order

64 Stat. 816, 50

602
No. 2 of the Economic U.S.C.A. Appendix,


603
Stabilization Agency, 16 Fed. Reg. § 2155.

This power

604
738. Pursuant to this authority,


605
was delegated to


606
the Office of Price Stabilization


607
the Office of Price


608
promulgated Rules of Procedure,

Stabilization by
Section 2 of which provided that

609
Exec.              Order No.


610
investigations would be held before


611
10161, 15 Fed. Reg.


612
the issuance of a ceiling price


613
6105, 50 U.S.C.A.


614
regulation. Price Procedural Appendix,


615
§ 2071


616
Regulation 1, Revision 2—note;

Gen. Order

617
General Price Procedures,

No. 2 of the Economic

618
§ 2, 17 Fed. Reg. 3788.


619
Stabilization Agency,


620
16 Fed. Reg. 738.

The right, if any, of
The type of notice   persons affected by

621
required to         an investigation to  Miscellaneous


622
be given in         cross-examine others Comments


623
investigative       testifying at


624
proceedings3        investigative

proceedings4

625
This was not        This was not          It should be noticed


626
specified by        specified by statute or   that the Office's


627
statute or          Executive Order. Nor  preissuance hearings


628
Executive Order.    did the Office's Rules   usually led to


629
The Office's of     Procedure make        determinations which


630
Rules of Procedure  any mention of the right   had severe effects


631
provided that       to cross-examine      upon certain individuals;


632
a general public    witnesses appearing at   yet, there


633
notice was to       preissuance hearings. was no provision for


634
be given in the     The Rules merely said personalized detailed


635
Federal Register    that the hearing was  notice or cross-


636
of all pre-issuance                        to "be conducted in   examination.


637
hearings. Price     such manner,


638
Procedural          consistent with the need


639
Regulation          for expeditious action,


640
1—General Price     as will permit the fullest

Prrocedures, §      possible presentation
4, 17 Fed. Reg.     of the evidence by

641
3788.               such persons as are,


642
in the judgment of


643
the Director, best


644
qualified to provide


645
information with


646
respect to matters


647
considered at the hearing


648
or most likely to be


649
seriously affected by


650
action which may be


651
taken as a result of


652
the hearing."Price

Procedural Regulation
1--General Price

653
procedures, § 5, 17 Fed.


654
Reg. 3788.

Extent of agency's
Scope of agency's    subpoena power in

655
Agency   investigative authority   investigative


656
proceedings


657
Office of Price     The Administrator was  "For the purpose of


658
Administration.6    "authorized to make such   obtaining any


659
studies and investigations and


660
information (in an


661
to obtain such information as he


662
investigation) * * *


663
(deemed) necessary or proper


664
the Administrator


665
to assist him in prescribing any


666
(could) by subpena


667
regulation or order under (the)


668
require any * * *

Act, or in the administration

669
person to appear and


670
and enforcement of (the) Act


671
testify or to appear


672
and regulations, orders, and


673
and produce


674
price schedules thereunder."


675
documents, or both,

56 Stat. 30.          at any designated

676
place." 56 Stat. 30.


677
The Department      (1) Under the Perishable   (1) The Perishable


678
of Agriculture.     Agricultural Commodities Act   Agricultural


679
of 1930, the Department is

Commodities Act of

680
authorized to investigate any

1930 authorizes

681
complaint filed with the


682
the Secretary to

Secretary alleging that someone

683
"require by subpoena


684
has violated the Act. 46 Stat.


685
the attendance and


686
534, 7 U.S.C. § 499f(c),


687
testimony of

7 U.S.C.A. § 499f(c). witnesses and the

688
(2) The Department also enforces


689
production of such


690
the Packers and Stockyards Act


691
accounts, records,

The right, if any, of
The type of notice   persons affected by

692
required to         an investigation to  Miscellaneous


693
be given in         cross-examine others Comments


694
investigative       testifying at


695
proceedings3        investigative

proceedings4

696
This was not        This was not specified   It should be noted


697
specified by        by statute. The       that even though the


698
statute. The        Administrator's Rules of   Administrator's


699
Administrator's Rules                     Procedure made no   proceedings smacked


700
of Procedure did    mention of the right to   of an adjudication,


701
not specify the     cross-examine         there was no express


702
type of notice,     witnesses during either   requirement that


703
if any, to be given                       investigations or   either detailed


704
during the          preissuance hearings. notice or the right to


705
investigative       32 CFR, 1944 Supp.,   to cross-examine


706
stage of price      § § 1300.2, 1300.5.   witnesses be given


707
regulation          The Rules merely provided   to the parties


708
proceedings. 32 CFR                       that hearings were to   affected by the


709
1944 Supp., §       be conducted "in such Administrator's actions.

1300.2. After       manner, consistent

710
the investigation,  with the need for


711
the Administrator   expeditious action, as


712
could hold a        will permit the fullest


713
price hearing       possible presentation


714
prior to issuance   of evidence by such


715
of the regulation,  persons as are, in the


716
and general         judgment of the


717
notice of the       Administrator, best


718
hearing was to      qualified to provide


719
be published in the                       information with respect to

Federal Register.   matters considered at
Id., § 1300.4.      the hearing or most

720
likely to be seriously


721
affected by action


722
which may be taken


723
as a result of the


724
hearing." Id.,


725
§ 1300.-5.


726
This is not         This is not specified (1) The Department of


727
specified by         by statute.          The of Agriculture,


728
statute. The        Department's Rules of unlike the Civil


729
Department's Rules  Practice adopted      Rights Commission,


730
of Practice adopted                       pursuant to the   may use the information


731
pursuant to the     Perishable Agricultural   obtained through


732
Perishable          Commodities Act and   investigations in its


733
Agricultural        the Packers and       subsequent adjudicative


734
Commodities Act and                       Stockyards Act    proceedings under


735
the Packers and     contain no reference to   the Perishable


736
Stockyards Act do   cross-examination      Agricultural Extent of agency's

Scope of agency's    subpoena power in

737
Agency   investigative authority   investigative


738
proceedings


739
The                 of 1921, which, for the purposes   and memoranda as


740
Department          of that Act, gives the Secretary   may be material for


741
of Agriculture -    the investigative and other   the determination


742
Continued.          enforcement powers possessed by   of any complaint


743
the Federal Trade Commission, 42


744
under" the Act. 46


745
Stat. 168, 7 U.S.C. § 222,


746
Stat. 536, 7 U.S.C.


747
7 U.S.C.A. § 222. The  § 499m (b), 7 U.

Department's Rules of Practice

748
S.C.A. § 499m(b).


749
also provide that investigations


750
(2) The Packers and


751
shall be conducted when informal

Stockyards Act of

752
complaints charging a violation

1921 gives to the

753
of the Act are received by the

Secretary those

754
Secretary. 9 CFR § 202.23.


755
powers conferred


756
upon the Federal

Trade Commission by

757
"sections 46 and


758
48-50 of Title 15."

Among those powers

759
is the authority to


760
subpoena witnesses.

42 Stat. 168, 7
U.S.C. § 222, 7

761
U.S.C.A. § 222.

The right, if any, of
The type of notice   persons affected by

762
required to         an investigation to  Miscellaneous


763
be given in         cross-examine others Comments


764
investigative       testifying at


765
proceedings3        investigative

proceedings4

766
not refer to the    during investigative  Commodities Act.


767
type of notice, if  proceedings. 7 CFR § 47.   7 CFR § 47.7.


768
any, which must     3; 9 CFR § 202.3,     (2) it is also of interest


769
be given in         although such a right is   that investigative


770
investigative       given in the formal,  proceedings under both


771
proceedings, 7 CFR  adjudicative stage of the Perishable


772
§ 47.3; 9 CFR       the proceedings. 7    Agricultural


773
§ 202.3,            CFR § §47.15, 47.32;  Commodities Act


774
although a          9 CFR § § 202.11, 202.29,   and the Packers


775
specific right to 202.48.                 and Stockyards


776
notice is given      Act are commenced


777
in adjudicative      by the filing


778
proceedings. 7 CFR   of complaints from


779
§ § 47.6, 47.27;     private individuals.

9 CFR § § 202.6      7 CFR § 47.3

780
202.23, 202.39.      9 CFR § 202.3.


781
(3) Finally, it


782
should be noted that


783
the Department of

Agriculture

784
administers


785
the Federal Seed


786
Act, 53 Stat. 1275,


787
7 U.S.C. §§ 1551-1610,


788
7 U.S.C.A. §§

1551-1610, which

789
makes it unlawful to


790
engage in certain


791
practices relating


792
to the labeling


793
and importation


794
of seeds, and a


795
statute regulating


796
export standards


797
for apples and pears,


798
48 Stat. 123,


799
7 U.S.C.


800
§ § 581-589,7 U.S.C.A.


801
§§ 581-589. The Rules


802
of Practice adopted


803
by the Secretary


804
pursuant to


805
statutory


806
authorization


807
provide that


808
proceedings under


809
these statutes shall


810
be initiated by an


811
investigation of the


812
charges contained


813
in any complaint


814
received by the


815
the Secretary.These

Rules

816
make no mention of the


817
type of notice, if


818
any,


819
given to those being


820
investigated; nor is

Extent of agency's
Scope of agency's    subpoena power in

821
Agency   investigative authority   investigative


822
proceedings

Commodity
Exchange
Commission

823
(Department of      The Commodity Exchange Act   The Secretary of


824
Agriculture).       empowers the Secretary of   Agriculture (acting


825
Agriculture (acting   through the through the

Commission) to "make such
Commission) is given

826
investigations as he may deem


827
the same subpoena


828
necessary to ascertain the facts


829
powers as are vested


830
regarding the operations of


831
in the Interstate


832
boards of trade, whether prior

Commerce Commission

833
or subsequent to the enactment


834
by the Interstate


835
of" the Act. The Secretary is

Commerce Act, 24

836
also empowered to "investigate


837
Stat. 383, 27 Stat.


838
marketing conditions of commodity


839
443, 32 Stat. 904,


840
and commodity products and

34 Stat. 798, 49

841
byproducts, including supply


842
and U.S.C. §§ 12, 46-48,


843
demand for these commodities, cost


844
49 U.S.C.A. §§ 12,


845
to the consumer, and handling and


846
46-48. 42 Stat. 1002,


847
transportation charges." 42 Stat.


848
as amended, 49 Stat.


849
1003, as amended, 49 Stat. 1499,


850
69                 Stat.                 160,


851
1491, 7 U.S.C. § 12,  7 U.S.C. § 15,


852
7 U.S.C.A. § 12.      7 U.S.C.A. § 15.

Food and Drug
Administration

853
(Department of      The Regulations adopted    The Act makes no


854
Health, Education   pursuant to the Federal   provision for


855
and Welfare).       Caustic Poison Act, 44 Stat.   compelling

1406, 15 U.S.C. §§ 401-411, 15

856
testimony.

U.S.C.A. §§ 401-411, authorize

857
the Administration to conduct


858
investigations, 21 CFR § 285.15,


859
and to hold preliminary hearings


860
"whenever it appears * * *


861
that the provisions of section 3


862
or 6 of the Caustic Poison Act


863
* * * have been violated and


864
criminal proceedings are


865
contemplated." Id., § 285.17.


866
[471]

The right, if any, of
The type of notice   persons affected by

867
required to         an investigation to  Miscellaneous


868
be given in         cross-examine others Comments


869
investigative       testifying at


870
proceedings3        investigative

proceedings4

871
there any reference


872
to cross-examination


873
during the


874
investigative stage


875
of the proceedings


876
7 CFR § §


877
201,151, 33.17.


878
This is not         This is not specified It is of interest to


879
specified by.       The by statute.       The note that


880
statute. The        Commission has no special   investigations may be


881
Commission has no   rules for              be initiated by


882
special rules for   investigations; however,   complaints from private


883
investigations;     its Rules of Practice parties and that the


884
however, its Rules  provide that a private   information


885
of Practice         party may initiate a  obtained during


886
provide that a      disciplinary proceeding   investigations


887
private party       by filing a           may be used


888
may initiate a      complaint, and that an   in a subsequent


889
disciplinary        investigation of the  adjudicative


890
proceeding by       complaint will be made.   proceeding


891
filing a complaint,                       No mention is   17 CFR § 0.53.


892
and that an         made of the right to


893
investigation of    cross-examine


894
the complaint will  witnesses during


895
be made. No mention                       investigative proceedings.


896
is made of the type                        17 CFR § 0.53.


897
of notice, if any,


898
which must be


899
given in


900
investigative


901
proceedings.


902
17 CFR § 0.53.


903
This is not         This is not specified It should be noted


904
specified by        by statute. The       that the


905
statute. The        Administration's      Administration


906
Administration's    regulations           make no investigates


907
Regulations make no                       mention of the   right specific instances


908
reference to notice                       to cross-examine   of possible unlawful


909
of investigative    witnesses appearing at   activity, and that


910
proceedings, but    investigative proceedings   unlike the Civil


911
they do require     or preliminary hearings.   Rights Commission,


912
that general        21 CFR § 285.17.      the Secretary


913
notice be given                            (acting through


914
to those against                           the Administration)


915
whom prosecution                           is required to


916
is contemplated.                           refer possible


917
21 CFR § 285.17.                           violations to the


918
proper United States


919
Attorney. 44 Stat.


920
1409, 15 U.S.C.A.


921
§ 409 (b),15 U.S.C.A.


922
§ 409 (b).

Extent of agency's
Scope of agency's    subpoena power in

923
Agency   investigative authority   investigative


924
proceedings


925
Presidential        (1) The Commission is authorized   The Commission


926
Commissions         "to investigate the may,   "for the


927
United States       administration and fiscal   purposes of carrying


928
Tariff              and industrial effects of the customs   out its functions


929
Commission.         laws of this country now in   and duties in


930
force or which may be hereafter


931
connection with any


932
enacted, the relations


933
investigation


934
between the rates of  authorized


935
duty on raw materials by law, * * * (1)


936
and finished * * * products,


937
* * * have access


938
the effects of ad valorem


939
and to and the right to


940
specific duties and of compound


941
copy any document,


942
specific and ad valorem duties,


943
paper,             or record,


944
all questions relative


945
pertinent to the


946
to the arrangement of schedules


947
subject matter under


948
and classification of articles


949
investigation, in


950
in the several schedules of the


951
the possession of


952
customs law, and, in general,


953
any person, firm,


954
* * * the operation of customs


955
copartnership,


956
laws, including their relation


957
corporation, or


958
to the Federal revenues,


959
association engaged


960
(and)                 their effect upon the


961
in the production,


962
industries and labor of the


963
importation, or


964
country." 46 Stat. 698, 19 U.S.C. §


965
distribution of


966
1332(a), 19 U.S.C.A. § 1322(a).


967
any article under


968
(2) The Commission is also


969
investigation,


970
authorized "to investigate the


971
(2)* * * summon


972
tariff relations between the


973
witnesses, take

United States and foreign

974
testimony, and


975
countries, commercial treaties,


976
administer oaths,


977
preferential provisions,


978
(3)* * * require


979
economic alliances, the effect of


980
any person, firm,


981
export bounties and preferential


982
copartnership,


983
transportation rates, the volume of


984
corporation, or


985
importations compared with


986
association, to


987
domestic production and


988
produce books or


989
consumption, and conditions,


990
papers relating


991
causes and effects relating to


992
to any matter


993
competition of foreign


994
pertaining to such


995
industries with those of the United


996
investigation, and

States, including dumping and cost

997
(4) * * * require


998
of production." 46 Stat. 698, 19


999
any person, firm,


1000
U.S.C. § 1332(b), 19 U.S.C.A.


1001
copartnership,


1002
§ 1322(b).            corporation, or


1003
(3) The Commission may


1004
association, to


1005
investigate "the Paris


1006
furnish in writing,

Economy Pact and similar

1007
in such detail and


1008
organizations and arrangements


1009
in such form as the


1010
Europe." 46 Stat. 698, 19 U.S.C. §


1011
commission may


1012
1322(c), 19 U.S.C.A. § 1332(c).


1013
prescribe,


1014
(4) The Commission is information in


1015
empowered to "investigate the


1016
their possession


1017
difference in the costs of


1018
pertaining to such

The right, if any, of
The type of notice   persons affected by

1019
required to         an investigation to  Miscellaneous


1020
be given in         cross-examine others Comments


1021
investigative       testifying at


1022
proceedings3        investigative

proceedings4

1023
Many of the         This is not specified (1) Since the


1024
statutory           by statute.           The Commission's


1025
provisions          Commission's Rules permit   investigative powers


1026
authorizing         a party who has entered   are generally


1027
the Commission      an appearance to question   exercised to aid


1028
to hold hearings    a witness "for        the the President


1029
pursuant to its     purpose of assisting  in the execution


1030
investigatory       the Commission in obtaining   of his duties under


1031
power require that  the material facts with   the Tariff Act, it


1032
reasonable notice   respect to the subject   is readily apparent that


1033
of prospective      matter of the investgation."   the Commission's


1034
hearings be given.  19 CFR § 201.14.      However, investigations may


1035
46 Stat. 701, 19    all questioning is done   have far reaching


1036
U.S.C. § 1336       under the direction of   effects upon those


1037
(a), 19 U.S.C.A.    and subject to the    persons affected


1038
§ 1336(a): 65       limitations imposed by the   by specific tariff


1039
Stat. 72, 19 U.S.C.                       Commission, and a person who           regulations.


1040
§ 1360( ) (1), 19   has not entered a formal   (2) It should also also


1041
U.S.C.A. § 1360     appearance may not, as   be noted that business


1042
(b) (1); 65 Stat.   a matter of right, question   data given to the


1043
74, 19 U.S.C §      witnesses. Ibid. See  Commission may


1044
1364(a), 19 U.S.C.A.                      also Norwegian Nitrogen   be classified as


1045
§ 1364(a); 49       Products Co. v. United   confidential, 19


1046
Stat. 774, 7        States, 288 U.S. 294. CFR § 201.6,


1047
U.S.C. § 53 S.Ct. 350, 77                 and that confidential


1048
624(a), 7 L.Ed. 796.                      material contained


1049
U.S.C.A. § 624(a).                         in applications for


1050
The Commission's                           investigation and


1051
Rules of Practice                          complaints will not


1052
also provide that                          be made available


1053
public notice of                           for public


1054
any pending                                inspection. Id.,


1055
investigation shall                        § 201.8.


1056
be given. 19 CFR,


1057
1960 Supp., §

201.10
Extent of agency's
Scope of agency's    subpoena power in

1058
Agency   investigative authority   investigative


1059
proceedings


1060
production of any domestic


1061
investigation." 46


1062
article and of any like or

Stat. 699, as

1063
similar foreign article." 46 Stat.


1064
ammended, 72 Stat

701, 19 U.S.C. § 1336(a), 19

1065
679, 19 U.S.C. §


1066
U.S.C.A. § 1336(a). 1333 (a),


1067
19 U.S.C.A.


1068
(5) The Commission is authorized


1069
§ 1333(a).


1070
to investigate any complaint


1071
alleging that a person


1072
has engaged in unfair methods


1073
of competition or unfair acts in


1074
the importation of articles into


1075
the United States. 46 Stat. 703,

19 U.S.C. § 1337(a), (b), 19

1076
U.S.C.A. § 1337(a, b).


1077
(6) Before the President enters


1078
into negotiations concerning any


1079
proposed foreign trade


1080
agreement, the Commission


1081
is required to conduct an


1082
investigation and make a report


1083
to the President, indicating the


1084
type of agreement which will best


1085
carry out the purpose of the

Tariff Act. 65 Stat. 72, 19

1086
U.S.C. § 1360(a), 19 U.S.C.A.


1087
§ 1360(a).


1088
(7) The Commission is authorized


1089
to "make an investigation


1090
and make a report thereon * *


1091
to determine whether any product


1092
upon which a concession


1093
has been granted under a trade


1094
agreement is, as a result, in


1095
whole or in part, of the duty or


1096
other customs treatment


1097
reflecting such concession,


1098
being imported into the United States


1099
in such increased quantities,


1100
either actual or relative, as to


1101
cause or threaten serious injury


1102
to the domestic industry producing


1103
like or directly competitive


1104
products." 65 Stat. 74, 19 U.S.


1105
C. § 1364(a), 19 U.S.C.A.


1106
§ 1364 (a).


1107
(8) The Commission is authorized


1108
to investigate the effects


1109
of dumping, and to determine


1110
whether because of such dumping,


1111
"an industry in the United

States is being or is likely to

1112
be injured, or is prevented from


1113
being established." 42 Stat. 11,


1114
19 U.S.C. § 160(a), 19 U.S.C.A.


1115
§ 160(a).

The right, if any, of
The type of notice   persons affected by

1116
required to         an investigation to  Miscellaneous


1117
be given in         cross-examine others Comments


1118
investigative       testifying at


1119
proceedings3        investigative

proceedings4
Extent of agency's
Scope of agency's    subpoena power in

1120
Agency   investigative authority   investigative


1121
proceedings


1122
(9) Finally, the Commission is


1123
authorized to conduct


1124
investigations for the purpose


1125
of determining whether "any


1126
article or articles are being


1127
or are practically certain to be


1128
imported into the United States


1129
under such conditions and in


1130
such quantities as to render or


1131
tend to render ineffective, or


1132
materially interfere with, any


1133
program or operation undertaken


1134
under" the Agricultural

Adjustment Act or the Soil
Conservation and Domestic
Allotment Act, 49 Stat. 773, as

1135
amended, 62 Stat. 1248, 7 U.S.C.


1136
§ 624(a), 7 U.S.C.A. § 624(a).


1137
Commission To       The Commission was authorized   The Commission


1138
Investigate the     to investigate the attack upon   was authorized "to


1139
Japanese Attack     Pearl Harbor in order "to issue subpenas


1140
on Hawaii.          provide bases for sound   requiring the


1141
decisions whether any derelictions


1142
attendance and


1143
of duty or errors of judgment on


1144
testimony of


1145
the part of the United States Army


1146
witnesses and the


1147
or Navy personnel contributed


1148
production of any


1149
to such successes as were


1150
evidence that


1151
achieved by the enemy on the


1152
relates to any


1153
occasion mentioned, and if so,


1154
matter under


1155
what these derelictions or


1156
investigation by


1157
errors were, and who were


1158
the Commission."


1159
responsible therefor." Exec.


1160
55 Stat. 854.

Order No. 8983, 6 Fed. Reg. 6569
The right, if any, of
The type of notice   persons affected by

1161
required to         an investigation to  Miscellaneous


1162
be given in         cross-examine others Comments


1163
investigative       testifying at


1164
proceedings3        investigative

proceedings4

1165
Neither the         Neither the Executive It is of special


1166
Executive Order     Order creating the    interest that the


1167
creating the        Commission, Exec. Order No.   Commission was


1168
Commission, Exec.   8983, 6 Fed. Reg. 6569,   charged with the


1169
Order No. 8983,     nor the joint resolution   responsibility of


1170
6 Fed. Reg. 6569,   conferring the subpoena   determining whether


1171
nor the joint       power upon the Commission,   the successful attack


1172
resolution          55 Stat. 853, made    upon Pearl Harbor


1173
conferring the      any mention of        resulted


1174
subpoena power upon                       the right to   from any


1175
the Commission,     cross-examine         individual


1176
55 Stat. 853,       witnesses.            derelictions


1177
required the        An examination of the of duty.


1178
Commission to       Commission's proceedings   Yet, even


1179
inform prospective  does not disclose instances   though the


1180
witnesses of        wherein any witness or   Commission's


1181
complaints party    to the                investigation


1182
lodged against      investigation had     all the


1183
them.               was given the right to   earmarks of


1184
cross-examine other.  an adjudication,


1185
witnesses.            none of the

In fact, such interested

1186
procedural


1187
parties as Admiral Kimmel


1188
safeguards


1189
and General Short,    the  demanded


1190
the Navy and Army     by the respondents


1191
commanders at Pearl   in these

Harbor, were not even cases were

1192
present at the hearings


1193
provided.


1194
when other witnesses

Extent of agency's
Scope of agency's    subpoena power in

1195
Agency   investigative authority   investigative


1196
proceedings


1197
Temporary           The Committee was authorized   The Committee was


1198
National Economic   to investigate "monopoly and   given the same


1199
Committee.         the concentration of economic   subpoena powers as


1200
power in and financial control


1201
were conferred upon


1202
over production and distribution


1203
the Securities


1204
of goods and services * * *


1205
and Exchange


1206
with a view to determining

Commission by the

1207
* * * (1) the causes of

Public Utility

1208
such concentration and


1209
Holding Company Act,


1210
control and their effect upon

49, Stat. 831, 15

1211
competition; (2) the effect of

U.S.C. § 79r(c), 15

1212
the existing price system and


1213
U.S.C.A. § 79r(c).


1214
the price policies of industry


1215
Stat. 706.


1216
upon the general level of trade,


1217
upon employment, upon long-


1218
term profits, and upon


1219
consumption, and (3) the effect of


1220
existing tax, patent, and other

Government policies upon

1221
competition, price levels,


1222
unemployment, profits, and


1223
consumption." 52 Stat. 705.


1224
Congressional       The Committee was authorized   The Committee was


1225
Investigating       to conduct an investigation into   authorized "to send


1226
Committees7         charges that William Duane, a   for persons,


1227
Senate Committee    newspaper editor, had published   papers, and


1228
of Privileges.      articles defaming the Senate.   records, and


1229
(1800)              Annals of Cong. 117 (1800).   compel the


1230
attendance of


1231
witnesses which


1232
may become


1233
requisite for the


1234
execution of their


1235
commission." 10

Annals of Cong. 121

1236
(1800).

The right, if any, of
The type of notice   persons affected by

1237
required to         an investigation to  Miscellaneous


1238
be given in         cross-examine others Comments


1239
investigative       testifying at


1240
proceedings3        investigative

proceedings4

1241
were testifying.

Hearings of the
Joint Congressional
Committee on the
Investigation

1242
of the Pearl Harbor Attack,


1243
79th Cong.,


1244
1st Sess., pts.


1245
22-25.

This was not        This was not specified

1246
specified by by     statute. The Rules


1247
statute.            of Procedure


1248
The Rules           adopted by the Committee


1249
of Procedure        for the conduct of its


1250
adopted by the      hearings did not refer to


1251
Committee for the   cross-examination. There


1252
conduct of          was merely a general


1253
its hearings        statement that


1254
made no mention     "(i)n all examination


1255
of the type         of witnesses, the rules of


1256
of notice, if any   evidence shall be observed


1257
which was to be     but liberally construed."


1258
given to prospective                      Hearings of the Temporary


1259
witnesses.          National


1260
Hearings of         Economic Committee, pt. 1,


1261
the Temporary       193.

National Economic
Committee, pt. 1
193.


This was not        This was not specified   It should be noted
specified by the    by the authorizing    that this
authorizing resolution.                   The Senate Committee was
resolution.         later rejected a motion to   investigating the
However, a          permit Duane "to have allegedly unlawful
subsequent          assistance of counsel for   conduct of a
resolution provided                       his defense," but allowed              specific individual;
that Duane was      to him to be heard through   yet, it does not
be informed of the  counsel "in denial of appear that he was
charges against him                       any facts charged against              given the right to
when he presented   (him) or in excuse and   cross-examine
himself at the bar  and extenuation of his   adverse
of the Senate. 10   offence." 10 Annals of   witnesses.
Annals of Cong. 117 Cong.                 118, 119 (1800).
(1800).
Extent of agency's
Scope of agency's    subpoena power in
Agency   investigative authority   investigative
proceedings
Committee of        Senator Smith had been   The authorizing
the Senate to       accused of conspiring with Aaron   resolution did not
Investigate         Burr to commit treason, and   indicate whether
Whether Senator     the Committee was     the Committee had
John Smith          established to investigate the   subpoena power.
of Ohio Should      the charges and to inquire   17 Annals of Cong.
Retain His Seat     whether Senator Smith "should   40 (1807).
in the Senate       be permitted any longer
(1807).             to have a seat" in the
Senate. 17 Annals of Cong.


40
 (1807)
Joint Committee     (1) The Committee was The Committee had
on the Conduct      established "to inquire into the   "the power to send
of the              conduct of the present (Civil)   for persons and
Civil War           war." Cong. Globe, 37th   papers." Cong.
(1861).             Cong., 2d Sess. 32, 40 (1861).   Globe, 37th Cong.,
(2) The Committee was 2d
Sess. 32, 40
also authorized       (1861).
"to inquire into the
truth of the rumored slaughter
of the Union troops, after their
surrender, at the recent attack
of the rebel forces upon Fort
Pillow, Tennessee; as also,
whether Fort Pillow could have
been sufficiently reenforced or
evacuated, and, if so, why it
was not done." 13 Stat. 405.
The right, if any, of
The type of notice   persons affected by
required to         an investigation to  Miscellaneous
be given in         cross-examine others Comments
investigative       testifying at
proceedings3        investigative
proceedings4
This was not        This was not specified   Here again, it
specified by the    by the authorizing    should be observed that
authorizing         resolution. Before the   the Committee
resolution. The     Committee, Senator Smith   was investigating
ommittee furnished                       "claimed, as a right, to                   the conduct of a
Senator Smith with  be heard in his defense   particular
a description of    by counsel, to have   individual, and
the charges and     compulsory process for   that the Committee's
evidence against    witnesses, and to be  findings could
him. Report of      confronted with his   have had
the Committee,      accusers, as if       severe


17
 Annals of        the Committee         consequences on
Cong. 56 (1807).    had been a circuit court   that individual.
of the United States."
Report of the Committee,


17
 Annals of Cong. 56 (1807)
However, the Committee
rejected these claims
on the ground that it was
not a court, but rather
a body whose function
it was to investigate
and report the facts
relating to Senator Smith's
conduct. Ibid.
This was not        This was not specified   It should be noted
specified           by the                by the authorizing   that the
authorizing         resolution. Many of the   Committee's
resolution. Many    generals whose conduct was   investigation
of the generals     being investigated were not   frequently
whose conduct was   given the right to be centered on the
being investigated  assisted by counsel or   allegedly derelict
were given no       to cross-examine other   conduct of specific
notice of the       witnesses. Botterud,  individuals.
charges that had    The Joint Committee on the   Botterud, The
been leveled        Conduct of the Civil War   Joint Committee
against them.       (M.A. Thesis, Georgetown   on the Conduct
Botterud, The       University, 1949),    of the Civil
Joint Committee 42.                       War (M.A.
on the Conduct of   Thesis, Georgetown
the Civil War       University, 1949), 42.
(M.A. Thesis,
Georgetown
University, 1949),42.
Extent of agency's
Scope of agency's    subpoena power in
Agency   investigative authority   investigative
proceedings
House Committee     The Committee was established   The Committee had
to Investigate      to investigate charges that the   authority "to send
the Electric        Electric Boat Company of New   for persons an
Boat Company        Jersey had "been engaged in   papers." H. R. Res.
of New              efforts to exert corrupting 288,   60th Cong.,
Jersey (1908).      influence on certain Members of 1st Sess.,   42 Cong.
Congress in their legislative
Rec. 2972.
capacities, and * * * (had)
in fact, exerted such corrupting
influence." H. R. Res. 288, 60th
Cong., 1st Sess., 42 Cong. Rec.
2972.
House Committee     (1) The Committee was authorized   The Committee was
to Investigate      to conduct an investigation   authorized "to
Violations          "for the purpose of ascertaining   compel the
of the              whether or not there have been   attendance of
Antitrust Laws      violations of the antitrust act of   witnesses, (and) to
by the American     July 2, 1890, and the various   send for persons
Sugar Refining      acts supplementary thereto, by   and papers." H. R.
Co. (1911).         the American Sugar Refining   Res. 157, 62d
Co.," and further, to Cong.,
1st Sess.,
"investigate the organization


47
 Cong. Rec. 1143
and operations of said American
Sugar Refining Co., and its
relations with other persons or
corporations engaged in the
business of manufacturing or
refining sugar, and all
other persons or corporations
engaged in manufacturing
or refining sugar and
their relations with each
other." H. R., Res. 157, 62d
Cong., 1st Sess., 47 Cong.
Rec. 1143.
Senate              The Committee was authorized   The Committee was
Committee to        "to make a full and complete   authorized "to
Investigate         investigation of all lobbying   require by subpena
Lobbying            activities and all efforts to   or otherwise the
(1935-1936)         influence, encourage, promote,   attendance of such
or retard legislation, directly,
witnesses and the
or indirectly in connection with
production of such
the so-called 'holding-company
correspondence,
The right, if any, of
The type of notice   persons affected by
required to         an investigation to  Miscellaneous
be given in         cross-examine others Comments
investigative       testifying at
proceedings3        investigative
proceedings4
This was not        The questioning of all   It is of interest
specified by the     witnesses was conducted   that the
authorizing         by the Committee, although   Committee was
resolution.         the parties being     investigating
However, most of    investigated were     specific charges
the charges which   permitted to          of corruption
led to the          submit written        leveled against
investigation were  interrogatories       named
made in public      for the Committee     individuals.
hearings before the                       to propound to
Rules Committee     certain witnesses.
of the House.       H. R. Rep. No. 1727,
H. R. Rep. No.      60th Cong.,
1168, 60th Cong.    1st Sess. 11.
1st Sess.



1262
This was not        This was not specified   Once again, it


1263
specified by the    by the authorizing statute.   should be noted


1264
authorizing         The Committee's Rules of   that the


1265
resolution. Nor     Procedure provided that   Committee


1266
was this specified  "counsel may attend   was established


1267
by the Committee's  witnesses summoned    to investigate,


1268
Rules of Procedure.                       before this committee,   among other things,


1269
but may not           possible


1270
participate in the    violations of


1271
examination or argument,


1272
the law.


1273
given by the committee,


1274
from time to time,


1275
as the occasion


1276
arises." Hearings before


1277
the Special Committee on


1278
the Investigation of the

American Sugar Refining

1279
Co., 62d Cong., 1st Sess.,


1280
Vols. 1, 3.

This was not        This was not specified

1281
specified by the    by the authorizing


1282
authorizing resolution.                   resolution.

The Committee adopted a rule

1283
that witnesses and their

Extent of agency's
Scope of agency's    subpoena power in

1284
Agency   investigative authority   investigative


1285
proceedings


1286
bill', or any other matter or


1287
books, papers, and


1288
proposal affecting legislation."


1289
documents * * * as

S. Res. 165, 74th Cong., 1st

1290
it * * * (deemed)


1291
Sess., 79 Cong. Rec. 11003.


1292
advisable." S.

Res. 165, 74th

1293
Cong., 1st Sess.,


1294
79 Cong. Rec.

11003.
The right, if any, of
The type of notice   persons affected by

1295
required to         an investigation to  Miscellaneous


1296
be given in         cross-examine others Comments


1297
investigative       testifying at


1298
proceedings3        investigative

proceedings4

1299
attorneys could not examine


1300
other witnesses; however,


1301
they could submit


1302
written questions,


1303
which the Committee would


1304
consider propounding to


1305
other witnesses. Hearings


1306
before Special Senate

Committee to Investigate
Lobbying Activities, 74th

1307
Cong., 2d Sess. 1469.


1308
Mr. Justice FRANKFURTER, concurring in the result.


1309
The United States Commission on Civil Rights, in exercising powers granted to it by the Civil Rights Act of 1957 (71 Stat. 635, 42 U.S.C. § 1975c, 42 U.S.C.A. § 1975c), scheduled a hearing to be held by it in Shreveport, Louisiana, on July 13, 1959. By these two actions judgments were sought to declare the proposed hearing illegal and to restrain the members of the Commission from holding it.


1310
The rules of procedure formulated by the Commission amply rest on leave of Congress. I need add nothing on this phase of the case to the Court's opinion. While it is a most salutary doctrine of constitutional adjudication to give a statute even a strained construction to avoid facing a serious doubt of constitutionality, 'avoidance of a difficulty will not be pressed to the point of disingenuous evasion. Here the intention of the Congress is revealed too distinctly to permit us to ignore it because of mere misgivings as to power. The problem must be faced and answered.' Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 622, 77 L.Ed. 1265. I have no such misgivings in the situation before us. I also agree with the Court's conclusion in rejecting the constitutional claims of the clients. In view, however, of divergences between the Court's analysis and mine of the specific issues before us, including the authoritative relevance of In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376 and Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, 79 S.Ct. 1157, 3 L.Ed.2d 1234, I state my reasons for agreement.


1311
To conduct the Shreveport hearing on the basis of sworn allegations of wrongdoing by the plaintiffs, without submitting to them these allegations and disclosing the identities of the affiants, would, it is claimed, violate the Constitution. The issue thus raised turns exclusively on the application of the Due Process Clause of the Fifth Amendment. The Commission's hearing are not proceedings requiring a person to answer for an 'infamous crime,' which must be based on an indictment of a grand jury (Amendment V), nor are they 'criminal prosecutions' giving an accused the rights defined by Amendment VI. Since due process is the constitutional axis on which decision must turn, our concern is not with absolutes, either of governmental power or of safeguards protecting individuals. Inquiry must be directed to the validity of the adjustment between these clashing interests—that of Government and of the individual, respectively—in the procedural scheme devised by the Congress and the Commission. Whether the scheme satisfies those strivings for justice which due process guarantees, must be judged in the light of reason drawn from the considerations of fairness that reflect our traditions of legal and political thought, duly related to the public interest Congress sought to meet by this legislation as against the hazards or hardship to the individual that the Commission procedure would entail.


1312
Barring rare lapses, this Court has not unduly confined those who have the responsibility of governing within a doctrinaire conception of 'due process.' The Court has been mindful of the manifold variety and perplexity of the tasks which the Constitution has vested in the legislative and executive branches of the Government by recognizing that what is unfair in one situation may be fair in another. Compare, for instance, Den ex dem Murray v. Hoboken Land & Improvement Co., 18 How. 272, 15 L.Ed. 372, with Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938, and see Federal Communications Comm. v. WJR, 337 U.S. 265, 275, 69 S.Ct. 1097, 1103, 93 L.Ed. 1353. Whether the procedure now questioned offends 'the rudiments of fair play,' Chicago, M. & St. P.R. Co. v. Polt, 232 U.S. 165, 168, 34 S.Ct. 301, 58 L.Ed. 554, is not to be tested by loose generalities or sentiments abstractly appealing. The precise nature of the interest alleged to be adversely affected or of the freedom of action claimed to be curtailed, the manner in which this is to be done and the reasons for doing it, the balance of individual hurt and the justifying public good—these and such like are the considerations, avowed or implicit, that determine the judicial judgment when appeal is made to 'due process.'


1313
The proposed Shreveport hearing creates risks of harm to the plaintiffs. It is likewise true that, were the plaintiffs afforded the procedural rights they seek, they would have a greater opportunity to reduce these risks than will be theirs under the questioned rules of the Commission. Some charges touching the plaintiffs might be withdrawn or modified, if those making them knew that their identities and the content of their charges were to be revealed. By the safeguards they seek the plaintiffs might use the hearing as a forum for subjecting the charges against them to a scrutiny that might disprove them or, at least, establish that they are not incompatible with innocent conduct.


1314
Were the Commission exercising an accusatory function, were its duty to find that named individuals were responsible for wrongful deprivation of voting rights and to advertise such finding or to serve as part of the process of criminal prosecution, the rigorous protections relevant to criminal prosecutions might well be the controlling starting point for assessing the protection which the Commission's procedure provides. The objectives of the Commission on Civil Rights, the purpose of its creation, and its true functioning are quite otherwise. It is not charged with official judgment on individuals nor are its inquiries so directed. The purpose of its investigations is to develop facts upon which legislation may be based. As such, its investigations are directed to those concerns that are the normal impulse to legislation and the basis for it. To impose upon the Commission's investigations the safeguards appropriate to inquiries into individual blameworthiness would be to divert and frustrate its purpose. Its investigation would be turned into a forum for the litigation of individual culpability matters which are not within the keeping of the Commission, with which it is not effectively equipped to deal, and which would deflect it from the purpose for which it was within its limited life established.


1315
We would be shutting our eyes to actualities to be unmindful of the fact that it would dissuade sources of vitally relevant information from making that information known to the Commission, if the Commission were required to reveal its sources and subject them to cross-examination. This would not be a valid consideration for secrecy were the Commission charged with passing official incriminatory or even defamatory judgment on individuals. Since the Commission is merely an investigatorial arm of Congress, the narrow risk of unintended harm to the individual is outweighed by the legislative justification for permitting the Commission to be the critic and protector of the information given it. It would be wrong not to assume that the Commission will responsibly scrutinize the reliability of sworn allegations that are to serve as the basis for further investigation and that it will be rigorously vigilant to protect the fair name of those brought into question.


1316
In appraising the constitutionally permissive investigative procedure claimed to subject individuals to incrimination or defamation without adequate opportunity for de ense, a relevant distinction is between those proceedings which are preliminaries to official judgments on individuals and those, like the investigation of this Commission, charged with responsibility to gather information as a solid foundation for legislative action. Judgments by the Commission condemning or stigmatizing individuals are not called for. When official pronouncements on individuals purport to rest on evidence and investigation, it is right to demand that those so accused be given a full opportunity for their defense in such investigation, excepting, of course, grand jury investigations. The functions of that institution and its constitutional prerogatives are rooted in long centuries of Anglo-American history. On the other hand, to require the introduction of adversary contests relevant to determination of individual guilt into what is in effect a legislative investigation is bound to thwart it by turning it into a serious digression from its purpose.


1317
The cases in which this Court has recently considered claims to procedural rights in investigative inquiries alleged to deal unfairly with the reputation of individuals or to incriminate them, have made clear that the fairness of their procedures is to be judged in light of the purpose of the inquiry, and, more particularly, whether its essential objective is official judgment on individuals under scrutiny. Such a case was Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377. There the inquiry was for the purpose of determining whether the security clearance of a particular person was to be revoked. A denial of clearance would shut him off from the opportunity of access to a wide field of employment. The Court concluded that serious constitutional questions were raised by denial of the rights to confront accusatory witnesses and to have access to unfavorable reports on the basis of which the very livelihood of an individual would be gravely jeopardized. Again, Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817, presented a contrasting situation to the one before us. The Government there sought through the Attorney General to designate organizations as 'Communist,' thus furnishing grounds on which to discharge their members from government employment. No notice was given of the charges against the organizations nor were they given an opportunity to establish the innocence of their aims and acts. It was well within the realities to say of what was under scrutiny in Joint Anti-Fascist Refugee Committee v. McGrath that 'It would be blindness * * * not be recognize that in the conditions of our time such designation drastically restricts the organizations, if it does not proscribe them.' 341 U.S. at page 161, 71 S.Ct. at page 643 (concurring opinion). And the procedure which was found constitutionally wanting in that case could be fairly characterized as action 'to maim or decapitate, on the mere say-so of the Attorney General, an organization to all outward-seeming engaged in lawful objectives * * *.' Ibid. Nothing like such characterization can remotely be made regarding the procedure for the proposed inquiry of the Commission on Civil Rights.


1318
Contrariwise, decisions arising under the Due Process Clause of the Fourteenth Amendment strongly support the constitutionality of what is here challenged, where the purposes were as here truly investigatorial. Thus, In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376, sustained inquiry by the Ohio State Fire Marshal into the causes of a fire while excluding counsel of subpoenaed witnesses on whose premises the fire occurred. The Court so held even though the Fire Marshal had authority, after questioning a witness, to arrest him if he believed there was sufficient evidence to charge him with arson. The guiding consideration was that, although suspects might be discovered, the essential purpose of the Fire Marshal's inquiry was not to adjudicate individual responsibility for the fire but to purs e a legislative policy of fire prevention through the discovery of the origins of fires. This decision was applied in Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, at page 288, 79 S.Ct. 1157, at page 1158, 3 L.Ed.2d 1234, which concerned 'a state judicial Inquiry into alleged improper practices at the local bar'. Rejecting the claim based on the consideration that the inquiry might serve as a groundwork for the prosecution of witnesses called before it, the Court applied Groban because the inquiry was a general one and appellants were before it not as potential accused but 'solely as witnesses.' The proposed investigation of the Commission on Civil Rights is much less likely to result in prosecution of witnesses before it than were the investigations in Groban and Baker. Just as surely, there is not present in the cases now before us a drastic official judgment, as in Greene and Joint Anti-Fascist Refugee Committee, where the Court deemed it necessary to insure that full opportunity for defense be accorded to individuals who were the specific, adverse targets of the secret process.


1319
Moreover, the limited, investigatorial scope of the challenged hearing is carefully hedged in with protections for the plaintiffs. They will have the right to be accompanied by counsel. The rules insure that they will be made aware of the subject of the hearings. They will have the right to appeal to the Commission's power to subpoena additional witnesses. The rules significantly direct the Commission to abstain from public exposure by taking in executive session any evidence or testimony tending 'to defame, degrade, or incriminate any person.' A person so affected is given the right to read such evidence and to reply to it. These detailed provisions are obviously designed as safeguards against injury to persons who appear in public hearings before the Commission. The provision for screening defamatory and incriminatory testimony in order to keep it from the public may well be contrasted with the procedure in the Joint Anti-Fascist case, where the very purpose of the inquiry was to make an official judgment that certain organizations were 'Communist.' Such condemnation of an organization would of course taint its members. The rules of the Commission manifest a sense of its responsibility in carrying out the limited investigatorial task confided to it. It is not a constitutional requirement that the Commission be argumentatively turned into a forum for trial of the truth of particular allegations of denial of voting rights in order thereby to invalidate its functioning. Such an inadmissible transformation of the Commission's function is in essence what is involved in the claims of the plaintiffs. Congress has entrusted the Commission with a very different role—that of investigating and appraising general conditions and reporting them to Congress so as to inform the legislative judgment. Resort to a legislative commission as a vehicle for proposing well-founded legislation and recommending its passage to Congress has ample precedent.


1320
Finally it should be noted that arguments directed either at the assumed novelty of employing the Commission in the area of legislative interest which led Congress to its establishment, or at the fact that the source of the Commission's procedures were those long used by Committees of Congress, are not particularly relevant. History may satisfy constitutionality, but constitutionality need not produce the title deeds of history. Mere age may establish due process, but due process does not preclude new ends of government or new means for achieving them. Since the Commission has, within its legislative framework, provided procedural safeguards appropriate to its proper function, claims of unfairness offending due process fall. The proposed Shreveport hearing fully comports with the Constitution and the law. Accordingly I join the judgment of the Court in reversing the District Court.


1321
Mr. Justice HARLAN, whom Mr. Justice CLARK joins, concurring.


1322
In joining the Court's opinion, as I do, I desire to add that in my view the principles established by In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376, and Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, 79 S.Ct. 1157, 3 L.Ed.2d 1234, are dispositive of the issues herein in the Commission's favor.


1323
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concu s, dissenting.


1324
With great deference to my Brethren I dissent from a reversal of these judgments.


1325
The cause which the majority opinion serves is, on the surface, one which a person dedicated to constitutional principles could not question. At the bottom of this controversy is the right to vote protected by the Fifteenth Amendment. That Amendment withholds power from either the States or the United States to deny or abridge the right to vote 'on account of race, color, or previous condition of servitude.' This right stands beyond the reach of government. Only voting qualifications that conform to the standards proscribed by the Fifteenth Amendment may be prescribed. See Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072. As stated in Terry v. Adams, 345 U.S. 461, 468, 73 S.Ct. 809, 813, 97 L.Ed. 1152, 'The Amendment, the congressional enactment and the cases make explicit the rule against racial discrimination in the conduct of elections.' By democratic values this right is fundamental, for the very existence of government dedicated to the concept 'of the people, by the people, for the people,' to use Lincoln's words, depends on the franchise.


1326
Yet important as these civil rights are, it will not do to sacrifice other civil rights in order to protect them. We live and work under a Constitution. The temptation of many men of goodwill is to cut corners, take short cuts, and reach the desired end regardless of the means. Worthy as I think the ends are which the Civil Rights Commission advances in these cases, I think the particular means used are unconstitutional.


1327
The Commission, created by Congress, is a part of 'the executive branch' of the Government, 71 Stat. 634, 42 U.S.C. § 1975(a), 42 U.S.C.A. § 1975(a), whose members are appointed by the President and confirmed by the Senate. § 1975(a). It is given broad powers of investigation with the view of making a report with 'findings and recommendations' to the Congress. § 1975c. It is empowered, among other things, to


1328
'investigate allegations in writing under oath or affirmation      that certain citizens of the United States are being deprived of their right to vote and have that vote      counted by reason of their color, race, religion, or national      origin; which writing, under oath or affirmation, shall set      forth the facts upon which such belief or beliefs are based.'      § 1975c(a)(1).


1329
Complaints have been filed with the Commission charging respondents, who are registrars of voters in Louisiana, with depriving persons of their voting rights by reason of their color. If these charges are true and if the registrars acted willfully (see Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495), the registrars are criminally responsible under a federal statute which subjects to fine and imprisonment1 anyone who willfully deprives a citizen of any right under the Constitution 'by reason of his color, or race.'2 18 U.S.C. § 242, 18 U.S.C.A. § 242.


1330
The investigation and hearing by the Commission are therefore necessarily aimed at determining if this criminal law has been violated. The serious and incriminating nature of the charge and the disclosure of facts concerning it are recognized by the Congress, for the Act requires certain protective procedures to be adopted where defamatory, degrading, or incriminating evidence may be adduced.


1331
'If the Commission  etermines that evidence or testimony at      any hearing may tend to defame, degrade, or incriminate any      person, it shall (1) receive such evidence or testimony in      executive session; (2) afford such person an opportunity voluntarily to appear as a      witness; and (3) receive and dispose of requests from such      person to subpena additional witnesses.' 42 U.S.C. §      1975a(e), 42 U.S.C.A. § 1975a(e).


1332
Yet these safeguards, given as a matter of grace, do not in my judgment dispose of the constitutional difficulty. First, it is the Commission's judgment, not the suspect's, that determines whether the hearing shall be secret or public. Thus this procedure has one of the evils protested against in In re Groban, 352 U.S. 330, 337, 348—353, 77 S.Ct. 510, 515, 521—524, 1 L.Ed.2d 376 (dissenting opinion). The secrecy of the inquisition only underlines its inherent vices: 'Secret inquisitions are dangerous things justly feared by free men everywhere. They are the breeding place for arbitrary misuse of official power. They are often the beginning of tyranny as well as indispensable instruments for its survival. Modern as well as ancient history bears witness that both innocent and guilty have been seized by officers of the state and whisked away for secret interrogation or worse until the groundwork has been securely laid for their inevitable conviction.' Id., 352 U.S. at pages 352—353, 77 S.Ct. at page 523. As said in dissent in Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, 299, 79 S.Ct. 1157, 1164, 3 L.Ed.2d 1234, 'secretly compelled testimony does not lose its highly dangerous potentialities merely because' it is taken in preliminary proceedings. Second, the procedure seems to me patently unconstitutional whether the hearing is public or secret. Under the Commission's rules the accused is deprived of the right to notice of the charges against him and the opportunity of cross-examination. This statutory provision, fashioned to protect witnesses as such rather than a prospective defendant, permits the Commission to exclude the accused entirely from the hearing and deny him the opportunity even to observe the testimony of his accusers. And even if the Commission were inclined in a particular case to protect the accused from the opprobrium likely to flow from the testimony of individual witnesses against him by holding secret sessions, this would be little comfort after the Commission's findings, based on such untested evidence, were publicized across the Nation.


1333
I assume that no court would be justified in enjoining a Congressional Committee composed of Senators or Congressmen that engaged in this kind of conduct. This is not that kind of a committee. Moreover, even if it were and if private rights were infringed by reason of the Committee's violations of the Constitution, there are circumstances when redress can be had in the courts. Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377. Cf. Greenfield v. Russel, 292 Ill. 392, 127 N.E. 103, 9 A.L.R. 1334; Opinion of the Justices, 96 N.H. 530, 73 A.2d 433. The judiciary also becomes implicated when the Congress asks the courts to back up what its Committees have done; or when a victim of an investigation asks relief from punishment imposed on him. Then the procedural safeguards of the Bill of Rights come into full play. See Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273.


1334
The Civil Rights Commission, however, is not a Congressional Committee of Senators or Congressmen; nor is it an arm of Congress. It is an arm of the Executive. There is, in my view, only one way the Chief Executive may move against a person accused of a crime and deny him the right of confrontation and cross-examination and that is by the grand jury.


1335
The grand jury is the accusatory body in federal law as provided by the Fifth Amendment. The essence of the institution of the grand jury was stated by 1 Stephen, History of Criminal Law of England, 252: 'The body of the country are the accusers.' Thomas Erskine stated the matter ac urately and eloquently in Jones v. Shipley 21 How.St.Tr. 847, 977.


1336
'(I)t is unnecessary to remind your lordships, that, in a      civil case, the party who conceives himself aggrieved, states his complaint to the court,—avails himself      at his own pleasure of its process,—compels an answer from      the defendant by its authority,—or taking the charge pro      confesso against him on his default, is entitled to final      judgment and execution for his debt, without any      interposition of a jury. But in criminal cases it is      otherwise; the court has no cognizance of them, without leave      from the people forming a grand inquest. If a man were to      commit a capital offense in the face of all the judges of      England, their united authority could not put him upon his      trial:—they could file no complaint against him, even upon      the records of the supreme criminal court, but could only      commit him for safe custody, which is equally competent to      every common justice of the peace:—the grand jury alone could      arraign him, and in their discretion might likewise finally      discharge him, by throwing out the bill, with the names of      all your lordships as witnesses on the back of it. If it      shall be said, that this exclusive power of the grand jury      does not extend to lesser misdemeanors, which may be      prosecuted by information; I answer, that for that very      reason it becomes doubly necessary to preserve the power of      the other jury which is left.'


1337
This idea, though uttered in 1783, is modern and relevant here. The grand jury brings suspects before neighbors, not strangers. Just recently in Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252, we said, 'The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.'


1338
This Commission has no such guarantee of fairness. Its members are not drawn from the neighborhood. The members cannot be as independent as grand juries because they meet not for one occasion only; they do a continuing job for the executive and, if history is a guide, tend to acquire a vested interest in that role.


1339
The grand jury, adopted as a safeguard against 'hasty, malicious, and oppressive' action by the Federal Government, Ex parte Bain, 121 U.S. 1, 12, 7 S.Ct. 781, 787, 30 L.Ed. 849, stands as an important safeguard to the citizen against open and public accusations of crime. Today the grand jury may act on its own volition, though originally specific charges by private prosecutors were the basis of its action. Hale v. Henkel, 201 U.S. 43, 59—60, 26 S.Ct. 370, 372—373, 50 L.Ed. 652. It has broad investigational powers to look into what may be offensive against federal criminal law. United States v. Johnson, 319 U.S. 503, 510, 63 S.Ct. 1233, 1237, 87 L.Ed. 1546. An indictment returned by a grand jury may not be challenged because it rests wholly on hearsay. Costello v. United States, 350 U.S. 359, 361—362, 76 S.Ct. 406, 407—408, 100 L.Ed. 397. An accused is not entitled to a hearing before a grand jury, nor to present evidence, nor to be represented by counsel; and a grand jury may act secretly—a procedure normally abhorrent to due process. In this country as in England of old, the grand jury is convened as a body of laymen, free from technical rules, acting in secret, pledged in indict no one because of prejudice and to free no one because of special favor. Costello v. United States, supra, 350 U.S. at page 362, 76 S.Ct. at page 408.


1340
Grand juries have their defects. They do not always return a true bill, for while the prejudices of the community may radiate through them, they also have the saving quality of being familiar with the people involved. They are the only accusatory body in the Federal Government that is recognized by the Constitution. I would allow no other engine of government, either executive or legislative, to take their place—at least when the right of confrontation and cross-examinat on are denied the accused as is done in these cases.


1341
The might and power of the Federal Government have no equal. When its guns are leveled at a citizen on charges that he committed a federal crime, it is for me no answer to say that the only purpose is to report his activities to the President and Congress, not to turn him over to the District Attorney for prosecution. Our Constitution was drawn on the theory that there are certain things government may not do to the citizen and that there are other things that may be done only in a specific manner. The relationship of the Federal Government to a man charged with crime is carefully defined. Its power may be marshalled against him, but only in a defined way. When we allow this substitute method, we make an innovation that does not comport with that due process which the Fifth Amendment requires of the Federal Government. When the Federal Government prepares to inquire into charges that a person has violated federal law, the Fifth Amendment tells us how it can proceed.


1342
The Civil Rights Commission, it is true, returns no indictment. Yet in a real sense the hearings on charges that a registrar has committed a federal offense are a trial. Moreover, these hearings before the Commission may be televised or broadcast on the radio.3 In our day we have seen Congressional Committees probing into alleged criminal conduct of witnesses appearing on the television screen. This is in reality a trial in which the whole Nation sits as a jury. Their verdict does not send men to prison. But it often condemns men or produces evidence to convict and even saturates the Nation with prejudice against an accused so that a fair trial may be impossible. As stated in 37 A.B.A.J. 392 (1951), 'If several million television viewers see and hear a politician, a businessman or a movie actor subjected to searching interrogation, without ever having an opportunity to cross-examine his accusers or offer evidence in his own support, that man will stand convicted, or at least seriously compromised, in the public mind, whatever the later formal findings may be.' The use of this procedure puts in jeopardy our traditional concept of the way men should be tried and replaces it with 'a new concept of guilt based on inquisitorial devices.' Note, 26 Temp.L.Q. 70, 73.


1343
Yet whether the hearing is televised or not it will have all the evils of a legislative trial. 'The legislative trial,' wrote Alan Barth in Government by Investigation (1955) p. 81, 'is a device for condemning men without the formalities of due process.' And he went on to say:


1344
'The legislative trial serves three distinct though related      purposes: (1) it can be used to punish conduct which is not      criminal; (2) it can be used to punish supposedly criminal      conduct in the absence of evidence requisite to conviction in      a court of law; and (3) it can be used to drive or trap      persons suspected of 'disloyalty' into committing some      collateral crime such as perjury or contempt of Congress,      which can then be subjected to punishment through a judicial      proceeding. 'It is hard to get them for their criminal      activities in connection with espionage, but a way has been      found,' Senator McCarthy once remarked. 'We are getting them      for perjury and putting some of the worst of them away. For      that reason I hope every witness who comes here is put under oath      and his testimony is gone over with a fine-tooth comb, and if      we  annot convict some of them for their disloyal activities,      perhaps we can convict some of them for perjury.' That they      may have been guilty of no violation of law in the first      place seems of no concern to the Senator.' Id., at 83. And      see Telford Taylor, Grand Inquest (1955).


1345
Barth wrote of hearings in the so-called loyalty cases. But the reasons apply to any hearing where a person's job or liberty or reputation is at stake. Barth wrote of hearings held by Congressional Committees. Yet the evil is compounded where the 'legislative trial' has become a 'Commission trial.' And while I assume that a court would not enjoin the typical Congressional Committee, it is duty bound to keep commissions within limits, when its jurisdiction is properly invoked.


1346
The right to know the claims asserted against one and to contest them—to be heard—to conduct a cross-examination—these are all implicit in our concept of 'a full and fair hearing' before any administrative agency, as the Court in Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 999, 82 L.Ed. 1129, emphasized. We spoke there in the context of civil litigation where property was at stake. Here the need for all the protective devices of a fair hearing is greater. For one's job and perhaps his liberty are hinged on these hearings.


1347
We spoke in the tradition of the Morgan case only recently in Greene v. McElroy, 360 U.S. 474, 496—497, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377.


1348
'Certain principles have remained relatively immutable in our      jurisprudence. One of these is that where governmental action      seriously injures an individual, and the reasonableness of      the action depends on fact findings, the evidence used to      prove the Government's case must be disclosed to the      individual so that he has an opportunity to show that it is untrue. While      this is important in the case of documentary evidence, it is      even more important where the evidence consists of the      testimony of individuals whose momory might be faulty or who,      in fact, might be perjurers or persons motivated by malice,      vindictiveness, intolerance, prejudice, or jealousy. We have      formalized these protections in the requirements of      confrontation and cross-examination. They have ancient roots.      They find expression in the Sixth Amendment which provides      that in all criminal cases the accused shall enjoy the right      'to be confronted with the witnesses against him.' This Court      has been zealous to protect these rights from erosion. It has      spoken out not only in criminal cases, * * * but also in all      types of cases where administrative and regulatory actions      were under scrutiny.' (Italics added.)


1349
We spoke there in a context where men were being deprived of their jobs as a result of investigations into their loyalty. Certainly no less is required if hearings are to be held on charges that a person has violated a federal law.


1350
Respondents ask no more than the right to known the charges, to be confronted with the accuser, and to cross-examine him. Absent these rights, they ask for an injunction. In the Greene case we said these rights were available 'where governmental action seriously injures an individual.' 360 U.S., at page 496, 79 S.Ct. at page 1413. Injury is plain and obvious here—injury of a nature far more serious than merely losing one's job, as was the situation in the Greene case. If the hearings are to be without the safeguards which due process requires of all trials—civil and criminal—there is only one way I know by which the Federal Government may proceed and that is by grand jury. If these trials before the Commission are to be held on charges that these respondents are criminals, the least we can do is to allow them to know what they are being tried for, and to confront their accusers and to cross-examine them.4 This protection would be extended to them in any preliminary hearing, even in one before a United States Commissioner.5 Confrontation and cross-examination are so basic to our concept of due process (Peters v. Hobby, 349 U.S.  31, 351—352, 75 S.Ct. 790, 800—801, 99 L.Ed. 1129 (concurring opinion)) that no proceeding by an administrative agency is a fair one that denies these rights.


1351
References are made to federal statutes governing numerous administrative agencies such as the Federal Trade Commission and the Securities and Exchange Commission; and the inference is that what is done in this case can be done there. This comes as a surprise to one who for some years was engaged in those administrative investigations. No effort was ever made, so far as I am aware, to compel a person, charged with violating a federal law, to run the gantlet of a hearing over his objection. No objection based either on the ground now advanced nor on the Fifth Amendment was, so far as I know, ever overruled. Investigations were made; and they were searching. Such evidence of law violations as was obtained was turned over to the Department of Justice. But never before, I believe, has a federal executive agency attempted, over the objections of an accused, to force him through a hearing to determine whether he has violated a federal law. If it did, the action was lawless and courts should have granted relief.


1352
What we do today is to allow under the head of due process a fragmentation of proceedings against accused people that seems to me to be foreign to our system. No indictment is returned, no commitment to jail is made, no formal criminal charges are made. Hence the procedure is condoned as violating no constitutional guarantee. Yet what is done is another short cut used more and more these days to 'try' men in ways not envisaged by the Constitution. The result is as damaging as summoning before committees men who it is known will invoke the Fifth Amendment and pillorying them for asserting their constitutional rights. This case—like the others—is a device to expose people as suspects or criminals. The concept of due process which permits the invention and use of prosecutorial devices not included in the Constitution makes due process reflect the subjective or even whimsical notions of a majority of this Court as from time to time constituted. Due process under the prevailing doctrine is what the judges say it is; and it differs from judge to judge, from court to court. This notion of due process makes it a tool of the activists who respond to their own visceral reactions in deciding what is fair, decent, or reasonable. This elastic concept of due process is described in the concurring opinion as follows:


1353
'Whether the scheme satisfies those strivings for justice      which due process guarantees, must be judged in the light of reason drawn from the considerations of fairness      that reflect our traditions of legal and political thought,      duly related to the public interest Congress sought to meet      by this legisla ion as against the hazards or hardship to the      individual that the Commission procedure would entail.'


1354
When we turn to the cases, personal preference, not reason, seems, however, to be controlling.


1355
Illustrative are the First Amendment protection given to the activities of a classroom teacher by the Due Process Clause of the Fourteenth Amendment in Sweezy v. State of New Hampshire, 354 U.S. 234, 255, 261—263, 77 S.Ct. 1203, 1214, 1217—1218, 1 L.Ed.2d 1311 (concurring opinion), but denied to the leader of an organization holding discussion groups at a summer camp in Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090; the decisions that due process was violated by the use of evidence obtained by the forceful use of a stomach pump in Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, but not when evidence was used which was obtained by taking the blood of an unconscious prisoner. Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448.


1356
It is said in defense of this chameleonlike due process that it is not 'an exercise of whim or will,' that it is 'founded on something much deeper and more justifiable than personal preference. As far as it lies within human limitations, it must be an impersonal judgment. It must rest on fundamental presuppositions rooted in history to which widespread acceptance may fairly be attributed.' Sweezy v. State of New Hampshire, supra, 354 U.S. at page 267, 77 S.Ct. at page 1220 (concurring opinion). Yet one who tries to rationalize the cases on cold logic or reason fails. The answer turns on the personal predilections of the judge; and the louder the denial the more evident it is that emotion rather than reason dictates the answer. This is a serious price to pay for adopting a free-wheeling concept of due process, rather than confining it to the procedures and devices enumerated in the Constitution itself. As said in Adamson v. People of State of California, 332 U.S. 46, 68, 89, 67 S.Ct. 1672, 1695, 91 L.Ed. 1903 (dissenting opinion):


1357
'In my judgment the people of no nation can lose their      liberty so long as a Bill of Rights like ours survives and      its basic purposes are conscientiously interpreted, enforced      and respected so as to afford continuous protection against      old, as well as new, devices and practices which might thwart      those purposes. I fear to see the consequences of the Court's      practice of substituting its own concepts of decency and      fundamental justice for the language of the Bill of Rights as      its point of departure in interpreting and enforcing that      Bill of Rights.'


1358
That was written concerning the meaning of the Due Process Clause of the Fourteenth Amendment. But it has equal vitality when applied to the Due Process Clause of the Fifth Amendment with which we are now concerned.


1359
I think due process is described in the Constitution and limited and circumscribed by it. The Constitution is explicit as respects permissible accusatory process that the Executive can employ against the citizen. Men of goodwill, not evil ones only, invent, under feelings of urgency, new and different procedures that have an awful effect on the citizen. The new accusatory procedure survives if a transient majority of the Court are persuaded that the device is fair or decent. My view of the Constitution confines judges—as well as the lawmakers and the Executive—to the procedures expressed in the Constitution. We look to the Constitution—not to the personal predilections of the judges—to see what is permissible. Since summoning an accused by the Government to explain or justify his conduct, that is charged as a crime, may be done only in one way, I would require a constitutional amendment before it can be done in a different way.


1360
The alternate path which we take today leads to trial of separate essential parts of criminal prosecutions by commissions, by executive agencies, by legislative committees. Farming out pieces of trials to investigative agencies is fragmentizing the kind of trial the Constitution authorizes. It prejudices the ultimate trial itself; and it puts in the hands of officials the awesome power which the Framers entrusted only to judges, grand jurors and petit jurors drawn from the community where the accused lives. It leads to government by inquisition.


1361
The Civil Rights Commission can hold all the hearings it desires; it can adduce testimony from as many people as it likes; it can search the records and archives for such information it needs to make an informed report to Congress. See United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401; Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614. But when it summons a person, accused under affidavit of having violated the federal election law, to see if the charge is true, it acts in lieu either of a grand jury or of a committing magistrate. The sifting of criminal charges against people is for the grand jury or for judges or magistrates and for them alone under our Constitution. In my view no other accusatory body can be used that withholds the rights of confrontation and cross-examination from those accused of federal crimes.


1362
I would affirm these judgments.



1
 Although the Civil Rights Act of 1957 provided that the Commission should cease to exist within two years after its creation, 71 Stat. 635, 42 U.S.C. § 1975c, 42 U.S.C.A. § 1975c, in 1959 Congress extended the Commission's life for an additional two years. 73 Stat. 724.


2
 The appellants in No. 549 and the petitioners in No. 550 are the individual members of the Civil Rights Commission. Hereinafter, they will be referred to as 'the Commission.' The appellees in No. 549 and the respondents in No. 550 will both hereinafter be referred to as 'respondents.'


3
 Because No. 549 was heard and decided by a three-judge District Court, a direct appeal to this Court was sought by the Commission pursuant to 28 U.S.C. § 1253, 28 U.S.C.A. § 1253. The Commission also filed an appeal in No. 550 with the United States Court of Appeals for the Fifth Circuit. However, before the Court of Appeals could render a decision in No. 550, the Commission filed a petition for certiorari pursuant to Rule 20 of this Court, 28 U.S.C.A.


4
 Section 104 of the Civil Rights Act of 1957, 71 Stat. 635, 42 U.S.C. § 1975c(a)(1), 42 U.S.C.A. § 1975c(a)(1).


5
 Section 105(f) of the Civil Rights Act authorizes the Commission to hold hearings and to subpoena witnesses. That section provides:
'(f) Hearings; issuance of subpenas.
'The Commission, or on the authorization of the Commission any subcommittee of two of more members, at least one of whom shall be of each major political party, may, for the purpose of carrying out the provisions of this Act, hold such hearings and act at such times and places as the Commission or such authorized subcommittee may deem advisable. Subpenas for the attendance and testimony of witnesses or the production of written or other matter may be issued in accordance with the rules of the Commission as contained in section 1975a(j) and (k) of this title, over the signature of the Chairman of the Commission or of such subcommittee, and may be served by any person designated by such Chairman.' 71 Stat. 636, 42 U.S.C. § 1975d(f), 42 U.S.C.A. § 1975d(f).


6
 The role of private citizens in depriving Negroes of their right to vote was one of the questions involved in United States v. McElveen, D.C.E.D.L.a., 180 F.Supp. 10, affirmed as to defendant Thomas, United States v. Thomas, 362 U.S. 58, 80 S.Ct. 612, 4 L.Ed.2d 535.


7
 Rule 3(i) of the Commission's Rules of Procedure, adopted on July 1, 1958, prohibits witnesses or their counsel from cross-examining other witnesses. That Rule reads:
'Interrogation of witnesses at hearings shall be conducted only by members of the Commission or by authorized staff personnel.'


8
 The full text of Section 102(h) of the Civil Rights Act reads as follows:
'(h) Submission of written statements.
'In the discretion of the Commission, witnesses may submit brief and pertinent sworn statements in writing for inclusion in the record. The Commission is the sole judge of the pertinency of testimony and evidence adduced at its hearings.' 71 Stat. 634, 42 U.S.C. § 1975a(h), 42 U.S.C.A. § 1975a(h).


9
 Under the Civil Rights Act, the Commission not only has the power to issue subpoenas under Section 105(f), but, as is customary when Congress confers the subpoena power on an investigative agency, the Commission is also authorized to enforce its subpoenas by enlisting the aid of the federal courts. 71 Stat. 636, 42 U.S.C. § 1975d(g), 42 U.S.C.A. § 1975d(g).


10
 Judge Wisdom, who dissented, was of the opinion that the procedures adopted by the Commission were authorized by Congress, and that those precedures were also constitutional. 177 F.Supp., at page 828.


11
 The court's injunction reads as follows:
'For reasons assigned in the Court's written opinion of October 6, 1959,
'It is ordered, adjudged and decreed that defendants and their agents, servants, employees and attorneys are enjoined and restrained from conducting the proposed hearing in Shreveport, Louisiana, wherein plaintiff registrars, accused of depriving others of the right to vote, would be denied the right of apprisal, confrontation and cross examination.
'This injunction does not prohibit all hearings pursuant to Public Law 85—315, 85th Congress, 42 U.S.C.A. § 1975 et seq., but only those hearings proposed to be held in the Western District of Louisiana wherein the accused are denied the right of apprisal, confrontation and cross examination.
'Thus done and signed in Chambers on this the 9 day of November, 1959.'
The breadth of this injunction is indicated by the fact that the Commission is not only prohibited from compelling respondents' appearance at the hearing, but it is also enjoined from conducting any hearing in the Western District of Louisiana under existing rules of procedure, whether or note the respondents are called as witnesses.


12
 The complete text of Section 102 reads as follows:
§ 1975a. Rules of procedure.
'(a) Opening statement.
'The Chairman or one designated by him to act as Chairman at a hearing of the Commission shall announce in an opening statement the subject of the hearing.
'(b) Copy of rules.
'A copy of the Commission's rules shall be made available to the witness before the Commission.
'(c) Attendance of counsel.
'Witnesses at the hearings may be accompanied by their own counsel for the purpose of advising them concerning their constitutional rights.
'(d) Censure and exclusion of counsel.
'The Chairman or Acting Chairman may punish breaches of order and decorum and unprofessional ethics on the part of counsel, by censure and exclusion from the hearings.
'(e) Defamatory, degrading or incriminating evidence.
'If the Commission determines that evidence or testimony at any hearing may tend to defame, degrade, or incriminate any person, it shall (1) receive such evidence or testimony in executive session; (2) afford such person an opportunity voluntarily to appear as a witness; and (3) receive and dispose of requests from such person to subpena additional witnesses.
'(f) Requests for additional witnesses.
'Except as provided in this section and section 1975d(f) of this title, the Chairman shall receive and the Commission shall dispose
of requests to subpena additional witnesses.
'(g) Release of evidence taken in executive session.
'No evidence or testimony taken in executive session may be released or used in public sessions without the consent of the Commission. Whoever releases or uses in public without the consent of the Commission evidence or testimony taken in executive session shall be fined not more than $1,000, or imprisoned for not more than one year.
'(h) Submission of written statements.
'In the discretion of the Commission, witnesses may submit brief and pertinent sworn statements in writing for inclusion in the record. The Commission is the sole judge of the pertinency of testimony and evidence adduced at its hearings.
'(i) Transcripts.
'Upon payment of the cost therefore, a witness may obtain a transcript copy of his testimony given at a public session or, if given at an executive session, when authorized by the Commission.
'(j) Witness fees.
'A witness attending any session of the Commission shall receive $4 for each day's attendance and for the time necessarily occupied in going to and returning from the same, and 8 cents per mile for going from and returning to his place of residence. Witnesses who attend at points so far removed from this respective residences as to prohibit return thereto from day to day shall be entitled to an additional allowance of $12 per day for expenses of subsistence, including the time necessarily occupied in going to and returning from the place of attendance. Mileage payments shall be tendered to the witness upon service of a subpena issued on behalf of the Commission or any subcommittee thereof.
'(k) Restriction on issuance of subpena.
'The Commission shall not issue any subpena for the attendance and testimony of witnesses or for the production of written or other
matter which would require the presence of the party subpenaed at a hearing to be held outside of the State, wherein the witness is found or resides or transacts business.' 71 Stat. 634, 42 U.S.C. § 1975a, 42 U.S.C.A. § 1975a.
In addition to the procedural safeguards provided by Section 102 of the Act, the Commission's Rules of Procedure grant additional protection. Thus, Rule 3(f) of the Commission's Rules of Procedure provides:
'(f) An accurate transcript shall be made of the testimony of all witnesses in all hearings, either public or executive sessions, of the Commission or of any subcommittee thereof. Each witness shall have the right to inspect the record of his own testimony. A transcript copy of his testimony may be purchased by a witness pursuant to Rule 2(i) above. Transcript copies of public sessions may be obtained by the public upon payment of the cost thereof.'
And Rule 3(j) provides:
'(j) If the Commission pursuant to Rule 2(e), or any subcommittee thereof, determines that evidence or testimony at any hearing may tend to defame, degrade, or incriminate any person, it shall advise such person that such evidence has been given and it shall afford such person an opportunity to read the pertinent testimony and to appear as a voluntary witness or to file a sworn statement in his behalf.'


13
 The amendments, introduced by Representative Dies, read, in pertinent part, as follows:
"(q) A person shall be considered to be adversely affected by evidence or testimony of a witness if the Commission determines that: (i) the evidence or testimony would constitute libel or slander if not presented before the Commission or (ii) the evidence or testimony alleges crime or misconduct or tends to disgrace or otherwise to expose the person to public contempt, hatred, or scorn.
"(r) Insofar as practicable, any person whose activities are the subject of investigation by the Commission, or about whom adverse information is proposed to be presented at a public hearing of the Commission, shall be fully advised by the Commission as to the matters into which the Commission proposes to inquire and the adverse material which is proposed to be presented. Insofar as practicable, all material reflecting adversely on the character or reputation of any individual which is proposed to be presented at a public hearing of the Commission shall be first reviewed in executive session to determine its reliability and probative value and shall not be presented at a public hearing except pursuant to majority vote of the Commission.
"(s) If a person is adversely affected by evidence or testimony given in a public hearing, that person shall have the right: (i) to appear and testify or file a sworn statement in his own behalf, (ii) to have the adverse witness recalled upon application made within thirty days after introduction of such evidence or determination of the adverse witness' testimony, (iii) to be represented by counsel as heretofore provided, (iv) to cross-examine (in person or by counsel) such adverse witness, and (v) subject to the discretion of the Commission, to obtain the issuance by the Commission of subpenas for witnesses, documents, and other evidence in his defense. Such opportunity for rebuttal shall be afforded promptly and, so
far as practicable, such hearing shall be conducted at the same place and under the same circumstances as the hearing at which adverse testimony was presented.
"Cross-examination shall be limited to one hour for each witness, unless the Commission by majority vote extends the time for each witness or group of witnesses.
"(t) If a person is adversely affected by evidence or testimony given in executive session or by material in the Commission files or records, and if public release of such evidence, testimony, or material is contemplated such person shall have, prior to the public release of such evidence or testimony or material or any disclosure of or comment upon it by members of the Commission or Commission staff or taking of similar evidence or testimony in a public hearing, the rights heretofore conferred and the right to inspect at least as much of the evidence or testimony of the adverse witness or material as will be made public or the subject of a public hearing.
"(u) Any witness (except a member of the press who testifies in his professional capacity) who gives testimony before the Commission in an open hearing which reflects adversely on the character or reputation of another person may be required by the Commission to disclose his sources of information, unless to do so would endanger the national security." 102 Cong.Rec. 13542—13543.


14
 The complete text of the House 'fair play' rules may be found in H.Res. 151, 84th Cong., 1st Sess.


15
 That Congress focused upon the issues here involved and recognized the distinctions between H.R. 6127 and S. 83 is attested to by the following extracts from the floor debate and committee hearings:
In testifying before both the House and Senate Subcommittees considering the various proposed civil rights bills, Attorney General Brownell supported the adoption of the House 'fair play' rules instead of the more restrictive procedures outlined in S. 83. Thus, at the Senate hearings, the Attorney General made the following statement:
'Now there is one other addition to S. 83 that I would like to make special reference to and that is the provision for rules of procedure contained in section 102 on pages 2 to 10 of S. 83.
'These rules of procedure are considerably more restrictive than those imposed on regular committees of the House and Senate. There is much in them which clearly would be desirable. We have not at yet had any experience with the use of rules such as those proposed here and we cannot predict the extent to which they might be used to obstruct the work of the Commission.
'Yet I feel that the task to be given to this Commission is of such great public importance that it would be a mistake to make it the vehicle for experimenting with new rules which may have to be tested out under the courts and this is only a 2-year Commission and you might have to spend those 2 years studying the rules instead of getting at the facts.' Hearings before Subcommittee on Constitutional Rights of the Senate Judiciary Committee, 85th Cong., 1st Sess. 14—15. See also Hearings before Subcommittee No. 5 of the House Judiciary Committee, 85th Cong., 1st Sess. 593.
The lack of any right to cross-examine witnesses was commented upon by members of both the House and the Senate:
Statement of Senator Talmadge during the Senate floor debate, 103 Cong.Rec. 11504:
'No provision is made for notification of persons against whom charges are to be made.
'No provision is made for persons adversely affected by testimony taken by the Commission to be present when they are accused or later to confront and cross-examine their accusers.'
Statement of Senator Stennis during Senate floor debate, 103 Cong.Rec. 13835:
'Defamatory testimony tending to defame, degrade, or incriminate any person cannot be heard by the person slandered, since the testimony must be taken in executive session. There is no requirement in the proposed statute that the person injured by defamatory testimony shall have an opportunity to examine the nature of the adverse testimony. He has no right of confrontation nor cross-examination, and his request to subpoena witnesses on his behalf falls within the arbitrary discretion of the Commission. There is no right to subpoena witnesses.'
Statement of Representative Kilday during House floor debate, 103 Cong.Rec. 8673:
'The bill provides that witnesses may be accompanied by counsel, for what purpose? 'For the purpose of advising them concerning their constitutional rights.' That is all. Even though the Commission or its own counsel develops only a portion of a transaction, and that adverse to the witness, his lawyer cannot ask a single question to develop the remainder of the transaction or the portion favorable to him.'
Statement of Representative Frazier during Hearings before the House Rules Committee, 85th Cong., 1st Sess. 176:
'The authors of this proposal contemplate that it will yield thousands of complaints and even more thousands of subpenas will be issued. The various allegations will, in the first instance, be incontrovertible and wholly ex parte and the principal concerned, against whom the charges are made, when summoned as a witness is given no opportunity to cross-examine. True, the person summoned as a witness may have counsel (sec. 102), but only for the purpose of advising him of his constitutional rights.'
That the bill contained the House 'fair play' rules is demonstrated by the following statement of Representative Celler, the author of the bill:
'The rules of procedure of the Commission are the same as those which govern the committees of the House. For example, the chairman is required to make an opening statement as to the subject of the hearing. Witnesses are furnished with a copy of the Commission's rules and may be accompanied by counsel. The chairman is authorized to punish breaches of order by censure and exclusion. Protection is furnished to witnesses when it appears that a person may be the subject of derogatory information by requiring such evidence to be received in executive session, and affording the person affected the right to appear and testify, and further to submit a request for subpena of additional witnesses.' 103 Cong.Rec. 8491. (Emphasis supplied.)


16
 Although the respondents contend that the procedures adopted by the Commission also violate their rights under the Sixth Amendment, their claim does not merit extensive discussion. That Amendment is specifically limited to 'criminal prosecutions,' and the proceedings of the Commission clearly do not fall within that category. See United States v. Zucker, 161 U.S. 475, 481, 16 S.Ct. 641, 643, 40 L.Ed. 777.


17
 The full text of Section 104 of the Act reads as follows:
§ 1975c. Duties; reports; termination.
'(a) The Commission shall—
'(1) investigate allegations in writing under oath or affirmation that certain citizens of the United States are being deprived of their right to vote and have that vote counted by reason of their color, race, religion, or national origin; which writing, under oath or affirmation, shall set forth the facts upon which such belief or beliefs are based;
'(2) study and collect information concerning legal developments constituting a denial of equal protection of the laws under the Constitution; and
'(3) appraise the laws and policies of the Federal Government with respect to equal protection of the laws under the Constitution.
'(b) The Commission shall submit interim reports to the President and to the Congress at such times as either the Commission or the President shall deem desirable, and shall submit to the President and to the Congress a final and comprehensive report of its activities, findings, and recommendations not later than two years from September 9, 1957.
'(c) Sixty days after the submission of its final report and recommendations the Commission shall cease to exist.' 71 Stat. 635, 42 U.S.C. § 1975c, 42 U.S.C.A. § 1975c.


18
 It should be noted that the respondents in these cases did have notice of the general nature of the inquiry. The only information withheld from them was the identity of specific complainants and the exact charges made by those complainants. Because most of the charges related to the denial of individual voting rights, it is apparent that the Commission could not have disclosed the exact charges without also revealing the names of the complainant.


19
 Cf. Sinclair v. United States, 279 U.S. 263, 295, 49 S.Ct. 268, 272, 73 L.Ed. 692, holding that Congress' legitimate right to investigate is not affected by the fact that information disclosed at the investigation may also be used in a subsequent criminal prosecution. Cf. also McGrain v. Daugherty, 273 U.S. 135, 179—180, 47 S.Ct. 319, 330—331, 71 L.Ed. 580, holding that a regular congressional investigation is not rendered invalid merely because 'it might possibly disclose crime or wrongdoing' on the part of witnesses summoned to appear at the investigation. Id., 273 U.S. at page 180, 47 S.Ct. at page 330.


20
 The injunction issue by the court below would certainly lead to this result since it prohibits the Commission from conducting any hearing under existing procedure, even though those being investigated are not summoned to testify.


21
 A compilation of the rules of procedure governing the investigative proceedings of a representative group of administrative and executive agencies, presidential commissions, and congressional committees is set out in the Appendix to this opinion. 363 U.S. at page 454, 80 S.Ct. at page 1521.


22
 The first full-fledged congressional investigating committee was established in 1792 to 'inquire into the causes of the failure of the late expedition under Major General St. Clair.' 3 Annals of Cong. 493 (1792). The development and use of legislative investigation by the colonial governments is discussed in Eberling, Congressional Investigations, 13—30. The English origin of legislative investigation in this country is discussed in Dimock, Congressional Investigating Committees, 46—56.


23
 See, e.g., Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377; McGrain v. Daugherty, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580; Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692; Christoffel v. United States, 338 U.S. 84, 69 S.Ct. 1447, 93 L.Ed. 1826; United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884; United States v. Fleischman, 339 U.S. 349, 70 S.Ct. 739, 94 L.Ed. 906; Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115.


24
 See Appendix, post, 363 U.S. at pages 478—485, 80 S.Ct. at pages 1536—1541. See also Dimock, Congressional Investigating Committees, 153; Eberling, Congressional Investigations, 283, 390; McGeary, The Developments of Congressional Investigative Power, 80; Liacos, Rights of Witnesses Before Congressional Committees, 33 B.U.L.Rev. 337, 359—361; American Bar Association, Special Committee on Individual Rights as Affected by National Security, Appendix to Report on Congressional Investigations, 67—68.
The English practice is described in Clokie and Robinson, Royal Commissions of Inquiry; Finer, Congressional Investigations: The British System, 18 U. of Chi.L.Rev. 521; Keeton, Parliamentary Tribunals of Inquiry, in Vol. 12, Current Legal Problems 1959, 12.


25
 See Appendix, post, 363 U.S. at pages 454—471, 80 S.Ct. at pages 1521—1532. See also Gellhorn, Federal Administrative Proceedings, 108; Report of the Attorney General's Committee on Administrative Procedure and the various Monagraphs written by that Committee.


26
 The Commission's practice with regard to investigations was described by the Attorney General's Committee on Administrative Procedure, Monograph, Securities Exchange Commission, 34—41. The following extract is pertinent here:
'Where formal investigations are utilized as preliminaries to decisive proceedings, the person being investigated is normally not sent a notice, which, in any event, is not public. The order for investigation, which includes the notice, is, however, exhibited to any person examined in the course of such investigation who so requests; since ordinarily the investigation will include the examination of the person suspected of violation, he will, thus, have actual notice of the investigation. Since a person may, on the other hand, be wholly unaware of the fact that he is being investigated until his friends who are interviewed so inform him, and since this may sometimes give rise to antagonism and a feeling that the Commission is besmirching him behind his back, no reason is apparent why, simply as a matter of good will, the Commission should not in ordinary cases send a copy of its order for investigation to the person under investigation.
'The Commission's Rules of Practice expressly provide that all such rules (governing notice, amendments, objections to evidence, briefs, and the like) are inapplicable to formal investigatory hearings in the absence of express provision to the contrary in the order and with the exception of rule II, which relates to appearance and practice by representatives before the Commission. The testimony given in such investigations is recorded * * *. In the usual case, witnesses are granted the right to be accompanied by counsel, but the latter's role is limited simply to advising the witnesses in respect of their right against self-incrimination without claiming the benefits of the immunity clause of the pertinent statute (a right of which the presiding officer is, in any event, instructed to apprise the witnesses) and to making objections to question which assertedly exceed the scope of the order of investigation.' Id., 37—38. (Emphasis supplied.) See also Loss, Securities Regulation (1951), 1152.


27
 Loss, Securities Regulation (1951), 1153. See also the statutes cited in the Appendix, 363 U.S. at page 463, 80 S.Ct. at page 1526.


28
 Marcy, Presidential Commissions, 97—101.


29
 See Appendix, 363 U.S. at pages 472—479, 80 S.Ct. at pages 1532—1537.


30
 However, the courts have on more than one occasion likened investigative agencies of the executive branch of Government to a grand jury. See, e.g., United States v. Morton Salt Co., 338 U.S. 632, 642, 70 S.Ct. 357, 363, 94 L.Ed. 401; Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 216, 66 S.Ct. 494, 509, 90 L.Ed. 614; Consolidated Mines of Calif. v. Securities & Exchange Comm., 9 Cir., 97 F.2d 704, 708; Woolley v. United States, 9 Cir., 97 F.2d 258, 262.


31
 The Commission cites In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376, and Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, 79 S.Ct. 1157, 3 L.Ed.2d 1234, in support of its position. Each of us who participated in those cases adheres to the view to which he subscribed therein. However, because there are significant differences between the Groban and Anonymous cases and the instant litigation, and because the result we reach today is supported by the other considerations analyzed herein, the Court does not find it necessary to discuss either of those cases.


1
 This Appendix describes the Rules of Procedure governing the authorized investigative proceedings of a representative group of administrative agencies, executive departments, presidential commissions, and congressional committees. The Appendix does not purport to be a complete enumeration of the hundreds of agencies which have conducted investigations during the course of this country's history. Rather, it is designed to demonstrate that the procedures adopted by the Civil Rights Commission are similar to those which have traditionally been used by investigating agencies in both the executive and legislative branches of our Government.


2
 We have found many other administrative agencies and presidential commissions enpowered to conduct investigations and to subpoena witnesses. Those agencies are not listed in the body of this Appendix because we were unable to find an adequate description of the rules of procedure governing their investigative proceedings. However, it is significant that the statutes creating these agencies made no reference to apprisal or cross-examination in investigative proceedings. Among the agencies in this catagory are: (1) Bureau of Corporations in the Department of Commerce and Labor, 32 Stat. 827; (2) Commission on Industrial Relations, 37 Stat. 415; (3) the Railroad Labor Board, 41 Stat. 469; (4) the United States Coal Commission, 42 Stat. 1023; (5) the Investigation Commission established by the Railroad Retirement Act of 1935, 49 Stat. 972, 45 U.S.C.A. §§ 215-218 note; (6) National Bituminous Coal Commission, 49 Stat. 992; (7) Wage and Hour Division of the Department of Labor, 52 Stat. 1061, 29 U.S.C.A. § 204; (8) Board of Investigation to Investigate Various Modes of Transportation, 54 Stat. 952, 49 U.S.C.A. note preceding section 1; (9) Commission on Organization of the Executive Branch of the Government, 67 Stat. 143, 5 U.S.C.A. §§ 138a-138j note; (10) Commission on Intergovernmental Relations, 67 Stat. 145, 5 U.S.C.A. §§ 138a-138j note.


3
 If the relevant statute makes no reference to notice, this fact will be mentioned. The negative inference which may be drawn from the absence of any statutory requirement that notice be given is supported by the fact that, in a few instances, Congress has made specific provision for the giving of notice in investigative proceedings. See, e.g., the statutes cited on page 473 of 363 U.S., page 1532 of 80 S.Ct., supra, requiring the United States Tariff Commission to give reasonable notice of any investigative hearing.


4
 If the relevant statute makes no reference to cross-examination, that fact will be mentioned because of the inference which may be drawn therefrom that Congress did not intend persons appearing at investigative hearings to cross-examine other witnesses. This inference
is strengthened by the fact that in a relatively few instances Congress has, for one reason or another, required that persons being investigated by a commission or agency be given the right to cross-examine other witnesses. See, e.g., 49 Stat. 1381, 46 U.S.C.A. § 239, which authorized the Secretary of Commerce to appoint special boards to investigate the causes of marine casualties.


5
 The Office of Price Stabilization is now defunct, having been terminated by Exec.Order No. 10434, 18 Fed.Reg. 809, U.S.Code Cong. and Adm.News 1953, p. 994.


6
 The Office of Price Administration is now defunct, its functions having been transferred to the Office of Temporary Controls by Exec.Order No. 9809, 11 Fed.Reg. 14281, 50 U.S.C.A. x, Appendix § 601 note, which in turn was terminated by Exec.Order No. 9841, 12 Fed.Reg. 2645, 50 U.S.C.A. Appendix, § 601 note.


7
 In addition to the investigating committees listed in the body of the Appendix, we think mention should also be made of the contemporary standing committees of Congress. Most of these committees have rules very similar to those adopted by the Civil Rights Commission. The Rules of Procedure of the Subcommittee on Privileges and Elections of the Senate Committee on Rules and Administration are typical. Rule 17 of the Rules reads as follows:
"There shall be no direct or cross examination by counsel appearing for a witness. However, the counsel may submit in writing any question or questions he wishes propounded to his client or to any other witness. With the consent of the majority of the Members of the Subcommittee present and voting, such question or questions shall be put to the witness by the Chairman, by a Member of the Subcommittee or by the Counsel of the Subcommittee either in the orginal form or in modified language. The decision of the Subcommittee as to the admissibility of questions submitted by counsel for a witness, as well as to their form, shall be final."
See also S.Rep. No. 2, 84th Cong., 1st Sess. 20; Hearings before the Subcommittee on Rules of the Senate Committee on Rules and Administration, on S.Res. 65, 146, 223, 249, 253, 256, S.Con.Res. 11 and 86, 83d Cong., 2d Sess., Part 3, 141-142, 344, 345, 374; Rules of Procedure of the Select Committee on Improper Activities in the Labor or Management Field, Rules 10 and 11. Reference has been made in the text, supra, 363 U.S. at pages 436-439, 80 § Ct. at pages 1512, 1513, to the House 'fair play' rules, which govern the hearings of most House Committees, and which make no provision for cross-examination.


1
 Civil suits for damages are also authorized. See 42 U.S.C. § 1983, 42 U.S.C.A. § 1983; Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281.


2
 The section reads in relevant part as follows:
'Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State * * * to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States * * * by reason of his color, or race * * * shall be fined not more than $1,000 or imprisoned not more than one year, or both.'


3
 The Rules of the Commission by Subdivision (k) provide:
'Subject to the physical limitations of the hearing room and consideration of the physical comfort of Commission members, staff, and witnesses, equal and reasonable access for coverage of the hearings shall be provided to the various means of communications, including newspapers, magazines, radio, news reels, and television. However, no witness shall be televised, filmed, or photographed during the hearings if he objects on the ground of distraction, harassment, or physical handicap.'


4
 Cf. Frankfurter, Hands Off the Investigations, New Republic, May 21, 1924, p. 329, at 331: 'It must be remembered that our rules of evidence are but tools for ascertaining the truth, and that these tools vary with the nature of the issues and the nature of the tribunal seeking facts. Specifically, the system of rules of evidence used in trials before juries 'are mainly aimed at guarding the jury from the over-weening effect of certain kinds of evidence.' That system, as pointed out by Wigmore, 'is not applicable by historical precedent, or by sound practical policy' to 'inquiries of fact determinable by administrative tribunals.' Still less is it applicable to inquiries by congressional committees. Of course the essential decencies must be observed, namely opportunity for cross-examination must be afforded to those who are investigated or to those representing issues under investigation.'


5
 Rule 5(b), Rules of Criminal Procedure, 18 U.S.C.A., provides that the defendant shall be informed of the complaint against him and of his right to retain counsel. Rule 5(c) expressly states, 'The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf.'


