(dissenting).
I am unable to agree either with the conclusion or the reasons advanced in its support. A study of the Act is convincing that there was no intent on the part of Congress to confer the power claimed. The language employed, in my judgment, clearly negatives such intent.
The question presented is aptly stated in the first paragraph of the opinion. The question, “Does Section 10(b) give the power to investigate” as later stated, is beside the issue. We are not concerned merely with the power of the Board to investigate, but rather with the power to compel respondents to give the information and testimony sought in the aid of such investigation.
All power confer-ed by Sec. 11 is expressly limited by the first paragraph thereof to that vested by Sections 9 and 10. To determine the power conferred by Sec. 11, therefore, it is necessary to ascertain the power “vested by Section 9 and Section 10.” Sec. 9 is entitled “Representatives And Elections,” and Par. (c) thereof confers the power of investigation. There is no other provision of the Act which expressly confers such power. This express power, however, is limited by the following phrase: “In any such investigation, the Board shall provide for an appropriate hearing upon due notice, * * *.” This limitation precludes the thought that the Board is empowered to investigate, and at some later time, in its discretion, conduct an “appropriate hearing.” The right to investigate is in connection with such hearing, and not otherwise. Sec. 10(a) empowers the Board to prevent unfair labor practices affecting commerce. Par. (b), upon the filing of a charge, confers the power to issue complaint and notice of hearing. The person complained against is given the right to answer and give testimony at the place and time fixed in the complaint. In other words, such person is entitled to a hearing upon the issues made by the complaint and answer thereto. No express power to investigate is found in Sec. 10. It is argued that because the Board “shall have power to issue * * * a complaint,” it follows that its duty in that respect is discretionary and, therefore, it has the implied power to investigate for the purpose of determining how its discretion shall be exercised. Assuming it impliedly has such right, it is a far step to the situation here presented where, in aid of such investigation, it is sought to compel respondents not only to appear personally and testify, but to produce their books and records. In other words, they are required, under compulsion, to furnish the Board with the testimony and evidence by which they may be charged with a violation of law.
In Par. (c) of Sec. 10, repeated reference is made to the testimony taken by the Board, all of which, however, is in connection with the hearing therein required. Sections (e) and (f) provide that when a petition for enforcement is filed by tbe Board, or a petition for review by the employer, that “a transcript of the entire record in the proceeding, including the pleadings and testimony * * * ” shall be certified by the Board and filed in the Court. The language in all of these paragraphs is clearly to the effect that the testimony and evidence referred to is that taken at a hearing upon the issues formed by the complaint and answer. There is not the slightest intimation that evidence or testimony is to be taken in any other manner, or at any other place or time.
It is apparent that the hearings referred to in Sec. 11 have reference to the hearings provided for in Sec. 10, and that the investigations referred to have reference to the investigations provided for in Sec. 9. In any event, the right of subpoena provided for in Sec. 11(1) in aid of investigation can be employed only in connection with a hearing upon issues between the parties. Whatever doubt there may be as to the soundness of this interpretation is dispelled by the last sentence1 of Sec. 11(1), which provides: “ * * * Such attendance of witnesses and the production of such evidence may be required from any place in the United States or any Territory or possession thereof, at any designated place of hearing.”
Is there room for doubt that the words “at any designated place of hearing” mean other than a hearing upon issues existing between parties? There must be a negative answer to this question, unless an ex-parte inspection of documents and examination of witnesses can he designated as a *588“hearing.” To do so would violate its common and universally accepted meaning.
Under the construction sought, subscribed to by the majority, there is an implied power in Sec. 10 to investigate, and to have compulsory process irrespective of a hearing, while under Sec. 9, where the power to investigate is expressly conferred, it was limited to, and in connection with, an “appropriate hearing.” To me this is a strange process of reasoning, the result of which is, by implication, to confer a power under Sec. 10 where Congress remained silent — broader than the power com-, ferred under Sec. 9 where Congress expressed itself.
The information sought by the subpoena and testimony is for the purpose of confirming an allegation contained in the charge filed with the Board, and which may be used by it in support of a complaint against the respondent. If it has a right to thus obtain evidence in support of one issue, it would seem that it likewise has such right, as to all essential allegations contained in the charge. The effect of such authority is to permit the Board to judge a case in advance, a procedure calculated to impair, if not destroy, a fair hearing upon a complaint subsequently made. This is especially true when it is considered that the same agency which is to make this so-called preliminary investigation and decide in advance, if it so desires, one of the issues which later may be controverted, will, in the latter event, be again called upon to make a second decision. To say that such investigation is merely for the purpose of tentatively determining an issue which may later arise, is without substance. For aught that appears, the Board, with the aid of the subpoena in question, will be enabled to make' a complete and final determination of a ■question which later may become a controverted issue. This is so because the Board will have all the evidence possessed by the Union which filed the charge, as well as that possessed by respondents,— all this before a complaint has issued and before any issue has been made between the Board and respondents.
The opinion makes the inapt illustration ■of “a prosecuting attorney who started criminal proceedings first and investigated afterwards.” It would be a procedure, however, with which I am not familiar, for a prosecuting attorney, upon receiving a complaint, to arm himself with a subpoena directing the suspected person to appear at his office with books and records and to submit to examination all for the purpose of determining ' whether he should be charged with an offense. Of course, the prosecuting attorney has a right, as I assume has the Labor Board, to investigate the allegations of the charge with a view of ascertaining if it is in conformity with the statute upon which it is predicated, is made in good faith, and the information or knowledge possessed by the one who files the charge in support thereof. Other persons, no doubt, may be interviewed for the purpose of ascertaining if there is reasonable cause to act upon the charge preferred. Any authority possessed in this respect, however, is a far cry from the power claimed in the instant matter.
.The opinion apparently places some reliance upon the Board’s argument that its position should be sustained as a matter of public policy. It is pointed out that the power claimed is essential to the efficient administration of the Act, and even goes to the extent of urging that it is-necessary for the protection of the employer. There may be those, however, who think the Board already has sufficient power, and would desire to take issue with the argument here presented. In any event the legitimate forum for such argument is Congress and not the courts. It is conceded that the power claimed under Sec. 10 is not expressed, but that it should be implied. As I have attempted to point out, it is my judgment that such a construction is not tenable. It is well to keep in mind, in construing this Act as well as any other, that Congress is capable of employing language to express that which was intended. If it had intended to delegate the power now claimed, it could have done so by the use of a few simple words. In Federal Trade Commission v. American Tobacco Company, 264 U.S. 298, 305, 44 S.Ct. 336, 337, 68 L.Ed. 696, 32 A.L.R. 786, the court used language which, to my mind, is peculiarly appropriate. It said:
“ * * * Anyone who respects the spirit as well as the letter of the Fourth Amendment would be loath to believe that Congress intended to authorize one of its subordinate agencies to sweep all our traditions into the fire (Interstate Commerce Commission v. Brimson, 154 U.S. 447, 479, 14 S.Ct. 1125, 38 L.Ed. 1047), and to direct fishing expeditions into private papers on the possibility that they may disclose evi*589dence of crime. We do not discuss the question whether it could do so if it tried, as nothing short of the most explicit language would induce us to attribute to Congress that intent. * * * ”
It is my judgment that the order appealed from should be reversed.
This sentence is omitted from the quotation in the footnote of the opinion.