Christoffel v. United States/Dissent Jackson
Mr. Justice JACKSON, dissenting.

THE CHIEF JUSTICE, Mr. Justice REED, Mr. Justice BURTON, and I think the Court is denying to the records of the Congress and its committees the credit and effect to which they are entitled, quite contrary to all recognized parliamentary rules, our previous decisions, and the Constitution itself.

No one questions that the competency of a Committee of either House of Congress depends upon the action of the House in constituting the Committee, and in determining the rules governing its procedure. Nor does any one deny that each House has the power to provide expressly that a majority of the entire membership of any of its Committees shall constitute a quorum for certain purposes and that, for other purposes, a different number shall be sufficient. For example, either House may provide expressly that, for the purpose of convening a session of a Committee or of approving a report, a majority of the Committee's entire membership shall be necessary and that, for the purpose of taking sworn testimony, one or more Committee members shall be sufficient to constitute a quorum. Similarly, each House may spell out a formal rule that a Committee shall constitute a competent tribunal to take sworn testimony if a majority of its members shall be present at the beginning of the session at which the testimony is taken and that such competency shall continue, although the attendance of Committee members may drop, during the Committee's session, to some smaller number. The reasonableness of such a rule is apparent because the value of the testimony taken by such a Committee is measured not so much by the number of people who hear it spoken at the session as it is by the number and identity of those who read it later.

But what Congress may do by express rule it may do also by its custom and practice. There is no requirement, constitutional or otherwise, that its body of parliamentary law must be recorded in order to be authoritative. In the absence of objection raised at the time, and in the absence of any showing of a rule, practice or custom to the contrary, this Court has the duty to presume that the conduct of a Congressional Committee, in its usual course of business, conforms to both the written and unwritten rules of the House which created it. 'Each House may determine the Rules of its Proceedings, * * *.' Art. I, § 2, cl. 2. This Court accordingly can neither determine the rules for either House of Congress nor require those rules to be expressed with any degree of explicitness other than that chosen by the respective Houses.

The record shows a quorum of this committee present when the session began and neither Christoffel nor anyone else had raised the point of no quorum up to the time he gave false testimony. On trial for perjury he introduced oral testimony tending to show that, at the moment he so testified, less than a quorum were actually present. The trial court charged that, in the absence of ch llenge or proof to the contrary, the quorum established at the beginning of the session is presumed to continue and the jury could find Christoffel guilty of perjury if he gave false testimony before such a body. He was found guilty. The Court now holds the charge was erroneous and that if the Government cannot show positively that there was a quorum present when he falsified, the committee was not a 'competent tribunal' within the Perjury Statute of the District and his conviction thereunder is invalid.

Thus the issue is not whether a quorum is required in order for the committee to be a competent tribunal, but whether committee rules, practices and records, and congressional rules, practices and records in analogous situations, are subject to attack by later oral testimony and to invalidation by the courts.

All the parliamentary authorities, including those cited by the Court, agree that a quorum is required for action, other than adjournment, by any parliamentary body; and they agree that the customary law of such bodies is that, the presence of a quorum having been ascertained and recorded at the beginning of a session, that record stands unless and until the point of no quorum is raised. This is the universal practice. If it were otherwise, repeated useless roll calls would be necessary before every action.

In this case, therefore, the record on the subject of quorum was entitled to full credit. Christoffel himself did not, during his testimony, raise the question of no quorum. Whether one not a member of the body would have been permitted to do so and what effect it would have, had he been refused, we need not decide. The fact is, he made no effort to raise the point. To have then even suggested the objection would have given opportunity to the Committee to correct it. And if there were not enough committee members present to make a legal body, he would be at liberty, if his objection were overruled, to walk out. Instead, he chose to falsify to the committee and now says that, despite the record, he should be allowed to prove that not enough members were present for his lie to be legal perjury. The Court agrees and holds that the House Rules requiring a quorum for action require this result. Since the constitutional provision governing the House itself also requires a quorum before that body can do business, this raises the question whether the decision now announced will also apply to the House itself. If it does, it could have the effect of invalidating any action taken or legislation passed without a record vote, which represents a large proportion of the business done by both House and Senate. The effect is illustrated by noting that such a rule would make possible the invalidation of not only this conviction for perjury, but the Perjury Act  itself, as well as the Judicial Code  which is now the source of this Court's authority to review the conviction. Moreover, this rule is in direct contravention of the Constitution which does not require either House or Senate, much less a committee, to take a record vote except  'at the Desire of one-fifth of those Present.' Art. I, § 5, cl. 3.

The Court significantly omits citation of any prior decision in support of its present conclusion.  The reason is fairly clear-the others are inconsistent with this one. For example, in United States v. Ballin, 144 U.S. 1, 12 S.Ct. 507, 509, 36 L.Ed. 321, we held it to be within the competency of the House to prescribe any method reasonably certain to ascertain the fact of a quorum; that the courts are not concerned with the wisdom or advantages of any such rule-'with the courts the question is only one of power.' The House has adopted the rule and practice that a quorum once established is presumed to continue unless and until a point of no quorum is raised. By this decision, the Court, in effect, invalidates that rule despite the limitations consistently imposed upon courts where such an issue is tendered. See Field v. Clark, 143 U.S. 649, 669-673, 12 S.Ct. 495, 496-498, 36 L.Ed. 294; United States v. Ballin, 144 U.S. 1, 5, 12 S.Ct. 507, 509, 36 L.Ed. 321; Flint v. Stone Tracy Co., 220 U.S. 107, 143, 31 S.Ct. 342, 345, 346, 55 L.Ed. 389, Ann.Cas. 1912B, 1312; cf. Leser v. Garnett, 258 U.S. 130, 137, 42 S.Ct. 217, 218, 66 L.Ed. 505. And see Coleman v. Miller, 307 U.S. 433, 453-456, 59 S.Ct. 972, 981-983, 83 L.Ed. 1385, 122 A.L.R. 695 and concurring opinions at 307 U.S. 456-460, and 460-470, 59 S.Ct. 983 990.

We do not think we should devise a new rule for this particular case to extend aid to one who did not raise his objection when it could be met and who has been prejudiced by absence of a quorum only if we assume that, although he told a falsehood to eleven Congressmen, he would have been honest if two more had been present. But in no event should we put out a doctrine by which every Congressional Act or Committee action, and perhaps every judgment here, can be overturned on oral testimony of interested parties.

We should affirm the conviction. 

Notes

Yet the Meyers conviction was affirmed and we denied his plea for review. Such a denial here of course does not imply approval of the law announced below but, on the undisputed facts, Meyers conviction rests on a basis which this Court says is 'unthinkable' as to Christoffel whose conviction is reversed.

Moreover, the Meyers jury was permitted to convict partly at least on the basis of testimony given before a Committee on October 6 when the committee records showed, and the Government admits, that no quorum was present at any time. Today's opinion is diametrically opposed to the Meyers conviction based on the October 4th testimony alone, but the Meyers conviction also rests in part on testimony before a body which demonstrably and admittedly never amounted to a quorum, while Christoffel's is reversed merely because the charge permitted the jury to ignore oral testimony 'indicating' that a quorum once admittedly established may have evaporated. I do not see how the Court can justify such discrimination. The court below evidently could not, for it relied on the Meyers case as a precedent for affirming the conviction of Christoffel on this identical issue. 171 F.2d 1004, 1005, n. 1.