WATERMAN, Circuit Judge.
Roland E. Thompson appeals from a judgment of the United States District Court for the Southern District of New York, Levet, J., holding him in contempt for failure to comply with a grand jury subpoena issued under the provisions of 28 U.S.C. § 1783. We hold that the judgment below must be reversed.
Thompson is an American citizen who, since 1938, has resided in the Philippines where he has substantial business interests. During June 1962, a grand jury sitting in the Southern District of New York was investigating alleged fraud in the procurement of contracts, and other alleged irregularities, in the administration of the Mutual Security Act of 1954. In furtherance of this investigation a subpoena was issued to Thompson by order of District Judge Thomas F. Murphy. The subpoena, bearing a return date of August 2, 1962, was personally served on appellant by the American Vice Consul' in the Philippines. 2On July 16, 1962,. Thompson wrote to the Presiding Judge of the District Court saying that he was unable to comply with the subpoena by reason, inter alia,, of his poor health. Annexed to this letter was a certificate of appellant’s physician, Dr. Luis A. Vazquez, stating that he had advised Thompson not to travel.
Thompson did not appear before the grand jury on August 2, 1962. On August 7, the grand jury filed an indictment charging him and one Addison R. Ketchum, a former employee of the International Cooperation Administration, with conspiracy to defraud the United States. Ketchum, thereupon, was arrested, and a bench warrant was issued for Thompson’s arrest. The same day the district court issued an order directing Thompson to show cause why he should not be found in contempt for failure to appear before the grand jury on August 2. The order was personally served upon appellant and due service by publication was made. After continuances to permit appellant’s counsel to take depositions in Manila, a hearing upon the order to show cause was had* On January 21, 1963, Judge Levet found Thompson to be in contempt and ordered that he be fined $50,000, subject to his purging himself by appearing before the same grand jury on February 26,1963. Notice of the' present appeal was filed on February 21, 1963.
We are confronted with three issues on this appeal:
I. Does the respondent-appellant as a defense to a contempt action brought for failure to obey the subpoena have standing to challenge the power of the district 'court to issue a grand jury subpoena under 28 U.S.C. § 1783, or could such a challenge properly have been made only by a timely motion to quash the subpoena?
II. Does 28 U.S.C. § 1783 authorize the federal district courts to issue a subpoena requiring a United States citizen residing in a foreign country to appear ^before a grand jury?
III. Did the court below consider and ■pass upon the issue of fact which con-broiled the question whether respondent-appellant was guilty of contempt for 'noncompliance with the subpoena?
We shall discuss each of these issues in turn.
I.
Although appellant sought to justify his noncompliance with the subpoena by means of his July 16,1962 letter to the Presiding Judge of the District Court, it was not until the hearing on the contempt action that Thompson challenged the power and jurisdiction of the court below to issue a grand jury subpoena under 28 U.S.C. § 1783. The Government now contends, as it did below, that, by failure to make a timely motion to quash, Thompson lost all standing to assert the invalidity of the issuance of the order. In so contending the Government relies principally upon Howat v. Kansas, 258 U.S. 181, 189-190, 42 S.Ct. 277, 66 L.Ed. 550 (1922) and United States v. United Mine Workers, 330 U.S. 258, 290-301, 67 S.Ct. 677, 91 L.Ed. 884 (1947).
Howat v. Kansas, supra, establishes the proposition that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties, even if the order was erroneously issued, until it is reversed by orderly and proper proceedings. See United States v. United Mine Workers, 330 U.S. at 293, 67 S.Ct. at 695. Here, however, it is precisely the jurisdiction or power of the court below which is challenged by the appellant. We have no doubt that as a matter of international law or constitutional limitations, the United States “possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal.” Blackmer v. United States, 284 U.S. 421, 436-437, 52 S.Ct. 252, 254, 76 L.Ed. 516 (1931). That power must, however, be exercised by Congress, and the district court has no such power or jurisdiction unless expressly conferred by statute. Blackmer v. United States, supra.
The Government further argues, relying on United States v. United Mine Workers, supra, and United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884 (1950), that even assuming the district court was without power or jurisdiction to order a grand jury subpoena under § 1783, Thompson could not ignore with impunity such an order which was valid on its face. In the United Mine Workers case it was held that except in circumstances of plain usurpation, a United States District Court has the authority to determine its own jurisdiction in a matter before it, and to maintain the status quo, as by issuance of a temporary restraining order, pending the determination of that issue. The Supreme Court concluded, therefore, that even should the district court be ultimately found, in such a case, to lack jurisdiction over the parties or the subject matter, it had power to punish violations of its prior restraining order as contempt. Here, however, the court was not seeking to preserve existing conditions pending a jurisdictional determination. Similarly inapposite is United States v. Bryan, supra, which dealt with the failure of a witness under subpoena to raise objections to the competence of the body' before which he appeared to testify. That decision did not touch the question of the validity of the subpoena which was issued or the power or jurisdiction of the body issuing it.
We hold, therefore, that a mandate is void which is beyond the power and jurisdiction of the issuing court and that the court may not punish for its violation. Ex parte Rowland, 104 U.S. 604, 26 L.Ed. 861 (1881); In re Sawyer, 124 U.S. 200, 8 S.Ct. 482, 31 L.Ed. 402 (1888); Ex Parte Fisk, 113 U.S. 713, 5 S.Ct. 724, 28 L.Ed. 1117 (1885). Thus, the power and jurisdiction of the court to issue a subpoena may be raised for the first time in a proceeding to punish for contempt.
II.
Appellant’s major contention, in attacking his conviction below, is that the Walsh Act, 28 U.S.C. § 1783 et.seq., confers power upon the district courts to issue subpoenas to witnesses outside the United States only for purposes of securing their testimony in a criminal proceeding, and that a grand jury investigation is not such a proceeding.
28 U.S.C. § 1783 provides, in material part:
“Subpoena of witness in foreign country
“(a) A court of the United States may subpoena, for appearance before it, a citizen or resident of the United States who:
* * * * * *
“(2) is beyond the jurisdiction of the United States and whose testimony in a criminal proceeding is desired by the Attorney General.”
The expression “criminal proceeding”, as it is found in the statute, is, at best, ambiguous. The weight of authority would appear to hold that the expression as generally employed does not embrace grand jury investigations, and that “criminal proceedings” have not been commenced until an indictment, information or complaint has been lodged against the accused. Post v. United States, 161 U.S. 583, 587, 16 S.Ct. 611, 40 L.Ed. 816 (1896); Mulloney v. United States, 79 F.2d 566, 578-579 (1 Cir. 1935), cert. denied, 296 U.S. 658, 56 S.Ct. 383, 80 L.Ed. 468; Orfield, The Federal Grand Jury, 22 F.R.D. 343, 391; Ballentine’s Law Dictionary, p. 312 (1948 ed.). And see In re Groban, 352 U.S. 330, 333, 77 S.Ct. 510, 1 L.Ed.2d 376 (1957) ; United States v. Price, 163 F. 904, 906 (S.D.N.Y.1908), aff’d, Price v. Henkel, 216 U.S. 488, 30 S.Ct. 257, 54 L.Ed. 581 (1910); Durban v. United States, 221 F.2d 520 (D.C.Cir.1954). Some authorities, however, speaking in a variety of contexts, but, again, speaking without reference to the specific statute before us, have interpreted the phrases; “proceeding” or “criminal proceeding.”’ more broadly. See Schwimmer v. United States, 232 F.2d 855, 860 (8 Cir. 1955), cert. denied, 352 U.S. 833, 77 S.Ct. 48, 1 L.Ed.2d 52; Hale v. Henkel, 201 U.S. 43, 66, 26 S.Ct. 370, 50 L.Ed. 652 (1906); Hemans v. United States, 163 F.2d 228 (6 Cir. 1947), cert. denied, 332 U.S. 801, 68 S.Ct. 100, 92 L.Ed. 380; Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940).
As the statute before us is am{biguous on its face, we must turn to legislative history to ascertain Congress’s. intent in enacting the provision. Colony, Inc. v. Commissioner, 357 U.S. 28, 78 S.Ct. 1033, 2 L.Ed.2d 1119 (1958) ; Offutt Housing Co. v. Sarpy County, Neb., 351 U.S. 253, 76 S.Ct. 814, 100 L.Ed. 1151 (1956); District of Columbia v. Y. M. C. A., 221 F.2d 56 (D.C.Cir.1955).
The Walsh Act, 44 Stat. 835, 28 U.S.C. [formerly] §§ 711-718, was enacted in 1926 as a special purpose statute designed to enable the Government to bring back from Europe two material witnesses to testify in the trial of actions arising out of the Teapot Dome scandals. The act was passed in the closing hours of the session, without a committee hearing, under suspension of rules, and without an opportunity for floor debate. See Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 516 (1932).
As originally enacted, 28 U.S.C. [former] § 712 provided, in pertinent part, as follows:
“712. Trial of criminal actions; witnesses beyond jurisdiction of United States; issue of subpoena addressed to consul in foreign country.
“Whenever the attendance at the trial of any criminal action of a witness, being a citizen of the United States or domiciled therein, who is beyond the jurisdiction of the United States, is desired by the Attorney General or any assistant or district attorney acting under him, the judge of the court before which such action is pending, or who is to sit in the trial of the same, may, upon proper showing, order that a subpoena issue * * * commanding such witness to appear before'the said court at a time and place therein designated.” (Emphasis supplied.)
By its use of the expression, “the trial of any criminal action,” it is clear that Congress did not intend this original provision to apply to grand jury investigations. The subpoenas contemplated by the provision were to be issued by the judge of the court “before which such action is pending or who is to sit in the trial of the same.”
In the 1948 revision and codification of the Judicial Code, the Walsh Act was redrafted and the phrase “criminal proceeding” was used in place of the phrase “trial of any criminal action.” The question, thus, is whether Congress, by using the phrase “criminal proceeding” in the 1948 revision, intended to enlarge the scope of the Walsh Act, so as to make it applicable to grand jury investigations.
It is well settled that where statutes are revised and consolidated a change in phraseology does not import a change in the law unless the intent of the legislature to alter the law is evident or the language of the new act is palpably such as to require a different construction. United States v. Ryder, 110 U.S. 729, 740, 4 S.Ct. 196, 28 L.Ed. 308 (1884); Anderson v. Pacific Coast S.S. Co., 225 U.S. 187, 199, 36 S.Ct. 626, 56 L.Ed. 1047 (1912); Gulf Research & Development Company v. Schlumberger Well Surveying Corporation, 92 F.Supp. 16, 18-19 (S.D.Cal.1950); 2 Sutherland, Statutory Construction 255 (3d ed. 1943). See also discussion in 1 McKinney’s Consolidated Laws of New York Annotated, Statutes, § 422, and cases cited therein. It is also established that the revisers’ notes to the 1948 codification of the Judicial Code, Title 28 U.S.C., are authoritative guides to congressional intent and to the proper interpretation of the-statute. United States v. National City Lines, 337 U.S. 78, 81, 69 S.Ct. 955 (1949); Adamowski v. Bard, 193 F.2d 578, 581 (3 Cir. 1952), cert. denied, 343 U.S. 906, 72 S.Ct. 634, 96 L.Ed. 1324; United States v. Scott & Williams, 88 F.Supp. 531, 533 (S.D.N.Y.1950) (Kaufman, J.); Gulf Research & Development Company v. Schlumberger Well Surveying Corp., supra.
The revisers’ notes to 28 U.S.C. §'• 1783 refer to two specific instances where-changes of language were made, and indicate the reasons for such changes. Neither reference concerns the phrase “criminal proceeding” and the notes to the-section state that any changes other than those specifically mentioned were merely “changes made in phraseology.” In commenting on the general policies under-which the revisers worked, Mr. William. W. Barron, Chief Reviser of Title 28,. wrote:
“Because of the necessity of consolidating, simplifying and clarifying numerous component statutory enactments no changes of law or policy will be presumed from changes of language in revision unless an intent to make such changes is clearly expressed.
“Mere changes in phraseology indicate no intent to work a change of meaning but merely an effort to state in clear and simpler terms the ■original meaning of the statute revised.
“Congress recognized this rule by including in its reports the complete Reviser’s Notes to each section in which are noted all instances where change is intended and the reasons therefor.”
Barron, The Judicial Code, 1948 Revision, 8 F.R.D. 439, 445-446. The same views have been expressed by other persons concerned with the revision. See Preface to Title 18, U.S.C.A. by Judge Alexander Holtzoff, pp. v. and vi.; Report of House of Representatives Committee on Revision of the Laws accompanying H.R. 7124 (H.R.Rep. No. 2646, 79th Cong., 2d Sess. (1946); Statement •of Charles J. Zinn, Law Revision Counsel of the Committee on the Judiciary, Cong. Service, 28 U.S.C., 80th Cong., 2d Sess. (1948) at pp. 1980-81.
In light of these authorities we conclude that Congress did not intend to •enlarge the scope of the Walsh Act when it enacted revised Section 1783 of Title '28 TJ.S.C. We are constrained to hold, therefore, that the district court was without power or jurisdiction to issue a subpoena requiring a citizen residing •abroad to appear before a grand jury in this district. It follows that respondent-•appellant was not required to obey the subpoena and cannot be held in contempt for his failure to comply with it. '•
Even if 28 U.S.C. § 1783 could be interpreted with sufficient breadth to encompass grand jury subpoenas, we should be required to reverse the judgment below for failure of the district judge to rule upon the factual issue which controlled the question whether respondent-appellant was guilty of contempt.
In passing adversely upon respondent’s excuse for noncompliance with the subpoena, Judge Levet held:
“No evidence has been presented by the respondent indicating that his travel from Manila to New York to comply with this court’s order would have presented a great risk of death or serious illness. * * * I conclude that there is insufficient evidence that Thompson is suffering from coronary insufficiency.” 213 F.Supp. 378-379.
We have some doubts about the correctness of Judge Levet’s ruling on this issue. We believe, however, that he erred in assuming that the primary question before him was a medical one, whether Thompson was in fact physically capable of responding to the subpoena without undue risk to his health. The question for decision was, rather, whether Thompson’s noncompliance with the subpoena was in mala fides and demonstrated a contumacious disregard of the authority of the court. See United States v. Bryan, 339 U.S. 323, 332, 70 S.Ct. 724, 94 L.Ed. 884 (1950).
The question of fact that controlled that issue, and the one which should have been resolved below, was whether Thompson actually believed' that compliance with the subpoena would create a risk of harm to him or whether the physicians’ examinations and certificate made subsequent to July 13, 1962 were part of a scheme engineered by appellant to evade the order of the court.
Upon the record before us the proper disposition of that question is by no means clear. Persuasive of Thompson’s good faith are his immediate response by letter to the subpoena, his professed willingness to be examined under oath in Manila concerning the subject matter of the grand jury investigation, his voluntary submission to physical examination by Embassy doctors, and the medical testimony of his own physicians. Persuasive of Thompson’s bad faith are some inconsistencies in the reports of his physicians, and several apparently-contrived non-medical excuses which he advanced for his nonappearance.
The judgment of the district court is reversed and the cause is remanded with instructions that the contempt proceedings be dismissed.
. In conformity with the requirements of 28 U.S.C. § 1783(b), Thompson was tendered a first-class round trip airline ticket between Manila and New York, together with $29.50 in travel funds.
. Pursuant to the provisions of 28 U.S.C. § 1784(b) United States Marshals were directed to, and did, levy upon and seize American property, valued at approximately $180,000, owned by Thompson and the Philippines company of which he is president.
. 28 U.S.C. § 1784(c).
„ “Criminal proceedings cannot be said to be brought or instituted until a formal charge is openly made against the accused, either by indictment presented or information filed in court, or, at the least, by complaint before a magistrate. * * * The submission of a bill of indictment by the attorney for the government to, the grand jury, and the examination of witnesses before them, are both in secret, and are no part of the criminal proceedings against the accused * * 16k U.S. at 587, 16 S.Ct. at 613.
. On tlie issue of physical ability to respond to the subpoena appellant introduced into evidence below the depositions of four physicians, whose medical qualifications have not been questioned. All concurred in the medical judgment that appellant could have traveled from Manila to New Tort only at some risk to his life or health. Although Thompson was requested to submit to examination by United States Embassy physicians in Manila, tbe Government did not offer to put into evidence tbe reports of that examination, nor did it offer any other expert testimony which might have served to rebut the evidence of Thompson’s own physicians. Oounsel for the Government chose, rather, to rely upon attempts to show that appellant’s symptoms did not justify the medical conclusions which his physicians had formed.