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339 U.S.

Opinion of the Court.

was "not pertinent"; that she would decide only at a meeting of the board.

Respondent and the other members of the board were jointly indicted on a charge that they "appeared before the Congressional Committee in the City of Washington, District of Columbia, on April 4, 1946, but failed to produce the records called for in the subpoenas, as they had power to do, and thereby wilfully made default." As we have pointed out, there is evidence to support the charge that the records were under the joint control of the members of the executive board and that the individual members, acting together, had power to produce them. It is contended, however, that respondent (in this respect no different from any other member) had no individual control over the records, and that there is thus no evidence that the nonproduction of the records resulted from anything she personally did or omitted to do.

It seems elementary that the only manner by which a duty requiring the joint participation of several persons may be performed is by a combination of individual performances. And conversely, the failure to perform such a duty is the result of a failure by some or all of the persons who have been ordered to act together to discharge their responsibilities. This failure is not necessarily the result of a conspiracy, which premises an agreement of some kind. One may, either alone or in concert with others, fail to perform his individual part of a task requiring joint participation.

When one accepts an office of joint responsibility, whether on a board of directors of a corporation, the governing board of a municipality, or any other position in which compliance with lawful orders requires joint action by a responsible body of which he is a member, he necessarily assumes an individual responsibility to act,

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within the limits of his power to do so, to bring about compliance with the order. It may be that the efforts of one member of the board will avail nothing. If he does all he can, he will not be punished because of the recalcitrance of others. Commissioners v. Sellew, 99 U. S. 624, 627 (1879). But to hold that, because compliance with an order directed to the directors of a corporation or other organization requires common action by several persons, no one of them is individually responsible for the failure of the organization to comply, is effectually to remove such organizations beyond the reach of legislative and judicial commands. This Court and the state courts which have considered the matter have adopted a contrary view. In Wilson v. United States, 221 U. S. 361 (1911), Mr. Justice Hughes stated the proposition thus:

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"A command to the corporation is in effect a command to those who are officially responsible for the conduct of its affairs. If they, apprised of the writ directed to the corporation, prevent compliance or fail to take appropriate action within their power for the performance of the corporate duty, they, no less than the corporation itself, are guilty of disobedience

For applications of this principle in the analogous situation presented by noncompliance with a mandamus, see State v. City of Live Oak, 126 Fla. 132, 170 So. 608 (1936); Littlefield v. Town of Adel, 151 Ga. 684, 108 S. E. 56 (1921); Smith v. Lott, 156 Ga. 590, 119 S. E. 400 (1923); McCulloch v. State, 174 Ind. 525, 92 N. E. 543 (1910); Middle States Utilities Co. v. City of Osceola, 231 Iowa 462, 1 N. W. 2d 643 (1942); Kentucky Culvert Mfg. Co. v. Elliott County Fiscal Court, 239 Ky. 797, 40 S. W. 2d 375 (1931); State v. Minneapolis Street R. Co., 154 Minn. 401, 191 N. W. 1004 (1923); Heather v. City of Palmyra, 317 Mo. 1320, 298 S. W. 750 (1927); Commonwealth v. Schmidt, 287 Pa. 150, 134 A. 478 (1926); Butler County v. Pittsburgh, H., B. & N. C. R. Co., 298 Pa. 347, 148 A. 504 (1929).

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339 U.S.

and may be punished for contempt." Id. at 376. (Emphasis supplied.) See also Commissioners v. Sellew, supra.1

Nor is a distinction to be drawn on the ground that a corporation was there involved while the Joint AntiFascist Refugee Committee is an unincorporated association. Brown v. United States, 276 U. S. 134, 141-142 (1928), makes it clear that a subpoena directed to an unincorporated association and its officers is equally valid. If the legislative committee had a right to demand the records, the directing officers of the association are quite as responsible for their production as if they were corporate officers. Cf. United States v. White, 322 U. S. 694 (1944).

The question that remains is whether, after introducing evidence that the board had power to produce the records, that it had not done so, and that each member of the board had read the identical statements quoted above

It is suggested that the Wilson case is distinguishable because it may be inferred from the fact that, according to Government counsel, the Government had been after the records "in one way or another" for nearly a month that the subpoenas duces tecum served upon the directors had been supplemented by oral orders. There is not one word in the Wilson record that supports such an inference. On the contrary, the grand jury's presentment was not for failure to obey any oral commands but "for failure to obey a certain subpoena issued out of this Court, dated October 28, 1910." Vide the following: "The COURT: What is the presentment precisely?

"Mr. WISE [Government Counsel]: The Grand Jury presents that the corporation is in contempt of this court in not obeying the subpoena, that these gentlemen are in contempt of Court in that they have known and had actual notice of the subpoenas issued to the corporation requiring it to produce these books, and in defiance of this court and of its process have failed to take any action to have their corporation comply with the process, . . . ."

The argument that respondent was tried and convicted upon a theory different from that upon which the evidence is here found sufficient to sustain the conviction is refuted by the record, which

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as his reason for noncompliance, the Government has the further burden of proving that each individual member had not done that which was within his power to bring about compliance with the Committee's order. It may well be that respondent's prepared statement before the Committee and her answers to the Committee's questions are sufficient in themselves to satisfy that requirement. For they indicate clearly that respondent had assumed no personal duty to do anything. The prepared statement was, of course, a patent evasion of the Committee's demands. While stating that each member of the executive board individually did not have control over the records, it does not deny, as it could not, that the members had power jointly to comply with the subpoenas. Since the subpoenas required that they act jointly-the previous demands on the chairman and the executive secretary individually having been of no availthe statement that the members individually had no power to comply is completely irrelevant.

And when the Committee asked respondent whether she, personally, would permit the Committee to have

is full of discussion concerning the import of the Wilson case. The following is representative:

"MR. ROGGE [counsel for respondent]: ... Let's look at the Wilson case again, which the Court of Appeals passed on [in Barsky v. United States, 167 F. 2d 241, 251]. It says if your members have the right to direct the corporation and fail to take appropriate action; in order to be free of guilt here did Ernestina have to be a propagandist and go to the board members and say before taking action"THE COURT (interposing): When she takes on the responsibility of an executive board member certain responsibilities flow along with that when she does it.

"MR. ROGGE: She is a member of the executive board. The evidence has shown that. . . . The record also shows that, what you get down to is that Ernestina, in order not to be guilty here, had to see to it that some sort of an affirmative action was taken, and I do not think that is required even under the Wilson case."

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access to the books, her answer again was an evasion. She said: "I don't think it is pertinent to say what I should do a week from now."

The difficulty with that position is that it is not for her nor any other member of the board to say that she would make up her mind next week. The return day of the subpoena had arrived. No one so much as hinted that there had been no time to act. The members had gathered in an attorney's office on April 2, when they received their statements. There was evidence that some members had gathered informally elsewhere to discuss the question of compliance. In fact all were present in the anteroom of the Committee's chamber on the morning of April 4. If there had been the slightest bent toward compliance, the opportunities were there. When respondent appeared before the Committee, she was asked in effect, as of that time, whether she was a party to the joint refusal to produce the records: "Would you now, right here now, give your consent to this committee to [see the books and records]?" As one of the members of the Committee stated to respondent: "That is the main thing, the whole case." Her answer was no answer.

It may be argued, however, that respondent may have adopted the position of the other members of the board only after she had tried in good faith to bring about compliance with the subpoena. Or perhaps she had been ill or necessarily out of town immediately prior to April 4. Granting that these or other excuses for nonaction may exist, must the Government negative each, or was the burden on respondent to advance them as defensive matter?

We think that the circumstances of this case fairly bring into play the familiar doctrine in criminal cases that "it is not incumbent on the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established circum

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