Alister v. kel, 201 U.S. 90 (1906)

Mc Alister v . heñ kel .

APPEAL EROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 341. Argued January 4, 5,1906.—Decided March 12, 1906.

Hále v. Henkel, ante, p. 43, followed, as to the inquisitorial powers of the Federal grand jury and the extent of privilege and immunity of a witness under the Fifth Amendment.

The facts are stated in the opinion.

Mr. De Lancey Nicoll, with whom Mr. Junius Parker and Mr. John D. Lindsay, were on the brief, for appellant.1

Mr. Henry W. Taft, Special Assistant to the Attorney General, with whom The Attorney General and Mr. Felix H. Levy, Special Assistant to the Attorney General, were on the brief, for the United States.1

Mr . Justi ce Brown delivered the opinion of the court.

The witness McAlister, who was secretary and a director of the American Tobacco Company, refused to answer or produce the documents for practically the same reasons assigned by the appellant Hale, demanding to be advised what the suit or proceeding was, and to be furnished with a copy of the proposed indictment. A copy of one of the agreements with three English companies and certified by the Consul General of the United States is contained in the record.

For reasons already partly set forth, we think that the immunity provided by the Fifth Amendment against self-incrim-ination is personal to the witness himself, and that he cannot set up the privilege of another person or of a corporation as an excuse for a refusal to answer—in other words, the privilege is that of the witness himself, and not that of the party on trial. The authorities are practically uniform on this point. Commonwealth v. Shaw, 4 Cush. 594; State v. Wentworth, 65 Maine, 234, 241; Ex parte Reynolds, 15 Cox Criminal Cases, 108, 115. In New York Life Insurance Co. v. People, 195 Illinois, 430, the privilege was claimed by a corporation, but the agent of an insurance company was permitted to testify, in a suit for the recovery of a statutory penalty, to facts showing the performance by the corporation of the act prohibited. Indeed, the authorities are numerous to the effect that an officer of a corporation cannot set up the privilege of a corporation as against his testimony or the production of their books.

The questions are the same as those involved in the Hale case, wit out the objectionable feature of the subpoena, and the or er of the Circuit Court is, therefore,

NELSON v. UNITED STATES.

BOSSARD v. SAME.

McNAIR v. SAME.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE

DISTRICT OF MINNESOTA.

Nos. 490, 491, 492. Argued January 5, 8, 1906.—Decided March 12, 1906.

In a suit in the Circuit Court of the United States brought by the United States against corporations for violations of the Anti-trust Law of July 2, 1890, a witness refused to answer questions or submit books to inspection before an examiner appointed by the court on the ground of immateriality, also pleading the Fifth Amendment; after the court had overruled the objections and directed him to answer he again refused and judgment in contempt was entered against him. On appeal to this court held, that:

Questions under the Constitution of the United States were involved and this court has jurisdiction of an appeal direct from the Circuit Court. In such an action the books of the various defendants both before and after the alleged combination, and the contracts between them, as well as other papers referred to in the opinion, are all matters of material proof, but whether material or not the testimony must be taken and exceptions can be noted by the examiner and the materiality of the evidence passed on by the court.

Witnesses cannot take objections to materiality of evidence in order to be relieved from testifying. The tendency or effect of the testimony on the issues between the parties is no concern of theirs.

Documentary evidence in the shape of books and papers of corporations are in the possession of the officers thereof, who cannot refuse to produce them on the ground that they are not in their possession or under their control.

Hale v. Henkel, ante, p. 43, followed to the effect that officers and em ployds of corporations cannot, under the Fourth and Fifth Amen ments, refuse to testify or produce books of corporations in suits against the corporations for violations of the Anti-trust Law of July 2, 189 , in view of the immunity given by the act of February 25, 1903.

Plaintiffs in error refused to obey the orders, and the examiner reported their disobedience to the court “for such action as the court might take for the further enforcement of its orders.” In defense plaintiffs in error filed separate answers, which respectively alleged that Nelson was the president and manager of the Hennepin Paper Company; Brossard, manager and treasurer of the Itasca Company, and McNair, a director and general manager of the Northwest Paper Company. In other particulars the answers are identical except so far as the relations of plaintiffs in error to their respective corporations made a difference. Plaintiffs in error are also directors of the General Paper Company. We insert the answer of Nelson in the margin.1

ow comes Benjamin F. Nelson and answering the order to show cause

.above-entitled matter on the 15th day of September, A. D. 1905,

h 6 Pe^^on heretofore filed in said matter by said complainant upon W c said order to show cause was made, alleges and shows unto the court as follows:

That this respondent is a director and the president of Hennepin Paper ompany, one of the defendants in the above-entitled matter, and is also e owner and holder of stock in said company of the par value of forty-nine in^TI11^ dollars, and that the books and papers referred to taclTd Order sh°w cause and in the petition and schedules thereto at-Pane ’ said order to show cause was made, are the books and are suh'° Hennepin Paper Company and not of this respondent, and respo J60 cou^ro^ °f said Hennepin Paper Company and not of this pa U ^is resPondent is also a director of General Paper Comand h ^d°^ defendants in the above entitled matter, and the owner thousfl1 S^°C^ in sa^d General Paper Company of the par value of two panv Ud W,° hundred and fifty dollars; that said Hennepin Paper Com-

an said General Paper Company have objected and do object, and

The court required the questions to be answered and the books and documents to be produced and, being of opinion that the order did not constitute a final decision, refused to allow an appeal on the part of either of . the plaintiffs in error or either of

this respondent has objected and does object, to the production of said books and papers for inspection by counsel for said complainant for the purpose of being offered in evidence in said cause. Said objections are based upon the following reasons:

the defendants in the suit or on the part of all of them jointly.

Plaintiffs in error refused to obey the order of the court, and upon the report of the examiner the judgment under review was

Statement of the Case. 201 U.S.

the order of the court requiring them to testify should be complied with.

The questions on the merits in these cases are the same as those on the merits in Alexander v. United States, post, p. 117,

4. That in addition to the matters above set forth, the purpose of the complainant in instituting said cause and in asking the questions mentioned in said order to show cause is to obtain a decree enjoining said General Paper Company from carrying on the business for which it was incorporated and to enjoin the carrying out of and operation under certain agency contracts and agreements existing between it and said Hennepin Paper Company, on the alleged ground that said contracts and agreements were made and are in violation of the provisions of said acts of Congress; that said contracts and agreements are of great value not only to said General Paper Company, whose entire business practically rests upon him, but are also of great value to and constitute valuable property rights in each of the defendants respectively parties thereto, including the Hennepin Paper Company, and that such injunction from carrying out said contracts and agreements and their virtual annulment thereby occasioned would result in great injury, damage and loss, not only to said Hennepin Paper Company or said General Paper Company, and that to compel said Hennepin Paper Company or said General Paper Company, through this respondent, to answer the questions aforesaid in aid of the purposes aforesaid would be contrary not only to the provisions hereinbefore referred to of said Fourth and Fifth Amendments to the Constitution of the United States, but also contrary to the well established rule of the common law as well as of equity jurisprudence, at no person will be compelled to discover any fact, either by producing ocuments or answering questions, which may subject him, either directly or m irectly, to prosecution for a crime or to a forfeiture or penalty or anymg m the nature of a forfeiture or penalty. Further answering this respondent alleges that he ought not to be require to answer the questions or comply with the requests, or produce for nspection by counsel for the complainant or for the purpose of being offered

^nCe cause above referred to, the books and papers referred to in u or er to show cause and in the petition and schedules thereto annexed, pon w ich said order to show cause was made, not only for the reasons l^Th ^°r^’ a^so f°r the following reasons, that is to say:

posed by said acts, and that to compel him to answer said questions or comply with said requests or to produce for inspection or for the purpose of being offered in evidence in said cause the said books and papers would be contrary to the provisions hereinbefore referred to of said Fourth and Fifth Amendments to the Constitution of the United States.

2. That the alleged acts of said Hennepin Paper Company and of said General Paper Company complained of by the complainant in its said original petition or bill of complaint in said cause, and which said complainant is endeavoring to establish in said cause, would, if committed by said defendant companies, involve certain violations of the laws of the State of Minnesota by this respondent, and would subject him to penalties and forfeiture under said laws, and that to compel him to answer the questions or comply with the requirements aforesaid, or to produce for inspection, or for the purpose of being offered in evidence in said cause, the said books and papers, would be to compel him to furnish evidence tending to establish that he has been guilty of such violations of the laws of the State of Minnesota and to subject him to the penalties and forfeitures aforesaid, contrary to the provisions hereinbefore referred to of said Fourth and Fifth Amendments to the Constitution of the United States.

In the pleadings in the original suit brought in the Circuit Court of the United States for the District of Minnesota it is respectively alleged and denied that the defendant corporations, of which plaintiffs in error are officers, had entered into an agreement, combination and conspiracy to control, regulate and monopolize not only the manufacture of newsprint and other papers, but the distribution and shipment thereof through the Middle, Southern and Western States, in violation of the Anti Trust Act of July 2,1890. The United States sought to establish by plaintiffs in error the truth of the charge, and the subpoena served upon them was explicit as to what was required of them.

The subpoenas required plaintiffs in error to produce the account books, including the journals, ledgers and other books kept by or under the control of the companies respectively, of which plaintiffs in error were respectively officers, (a) showing the amounts, kinds and grades of paper manufactured by the respective companies and sold by or through the General Paper Company, and were shipped since the fifth of July, 1900; (b) the prices, amounts or credits received for such paper from the paper company between the fifth of July and the present time, including entries, showing the manner in which the prices and amounts received by the respective companies for any and all

as this S ° are dUe sa^ Hennepin Paper Company, all of which, lost tn re™ a^se<:f and believes, will be or may be forfeited and case thrill i endanf to this respondent as a stockholder therein in olaint w 1 combination alleged in said original petition or bill of comspondent^ir 8 decree or judgment in said cause; and this rewith the re comPe^ to answer the questions and comply in evident u Pr°duce f°r inspection and for purpose of being offered the petition PaPers referred to in said order to show cause and and comply w'thSC 6 U^S and which he has declined to answer to the nrovisi™ Pr°^uce» if material to said cause, would be contrary of the United St *t ^Our^ and Fifth Amendments to the Constitution common law an^ T’ aJS° contrary to the well established rule of the to discover anv fa *t e<luity jurisprudence, that no person will be compelled alty or anvthincr ,C ma^er which may subject him to forfeiture or pen-

anythmg m the nature of a forfeiture or penalty.

Statement of the Case. 201 U.S.

pr^frcts ^sold have been equalized with the prices and amounts receded or realized of any and all of the other defendW'conwnes for which the paper company is or has been the ^xclu0ve agent; (c) the amounts and proportions of earnings or profits of the paper company received by the respective companies from and through the paper company, either in the form of rebates, credits or otherwise.

Second. All contracts, agreements, writings and account books, including journals, ledgers and other books, kept by or under the control of the respective companies, showing the agreement, arrangement or understanding under and pursuant to each, and the manner in which the prices and amounts realized by the respective companies upon the various kinds and grades of paper manufactured by it and sold by and through the paper company, are and have been, since July 5, 1900, equalized, or the profits arising from the sale of such paper distributed or apportioned, as between the respective companies and other defendants manufacturing and selling through the paper company similar kinds or grades of paper, or among all of the defendants manufacturing similar kinds or grades o paper, and then and there to testify and the truth to say, in a certain matter in controversy in said court, between the United States as complainant against the General Paper Company etal., defendants, on the part of the complainant.

The questions were directed to these ends. They were directed to ascertain whether the prices received for the various paper materials were equalized, and whether during the time the General Paper Company was the selling agent of the materials there was in existence an arrangement whereby the prices received through the paper company were equalized between the other defendant companies. The questions were put in various ways to show such equalization and the arrangements to equalize, and to show the allowances to each mill, the fixing of definite prices, and the distribution of the balances received among the companies on the basis of their average daily output of the grade of paper inquired about. And there were also questions asked as to whether the board of directors or the executive committee of the paper company fixed the prices of paper to be paid to each of the mills by or through the paper company, and the compensation to be paid to the mills making butchers fibre paper, because it was less profitable, and other questions as to conversations between gentlemen representing the different mills in regard to the organization of a corporation o act as general selling agent in order to eliminate competition.

ere were also questions as to whether the books showed the gs expressed in the other questions. The objection made o each of the questions before the examiner was that the tesimony sought was irrelevant, incompetent and immaterial, and anfi18^ a^se(^ witnesses not to answer. As to the books

“0^ is a sample of the proceedings: Cq o the books, journals or ledgers of the Hennepin Paper mpany show any agreement or arrangement or understandg un er and pursuant to which and the manner in which the ces and amounts realized by the Hennepin Paper Company

Argument for Plaintiffs in Error. 201 U.S.

upon various grades of paper manufactured by it and sold by or through the defendant the General Paper Company, are and have been, since the 5th day of July, 1900, equalized or the profits arising from the sale of such paper distributed or apportioned as between the defendants?

“Mr . Fla nd ers : All objections renewed, and I give the witness the same advice.

“ (No answer.)

“Q. Do you refuse, Mr. Nelson, to produce the books?

“Mr . Flan ders : As I said before, you may assume for the purposes of these questions that the books and all the papers called for are present in court, but on behalf of the Hennepin Paper Company and the witness and the General Paper Company I decline to submit those to the inspection of the Government counsel.

“Mr . Kell ogg : Or to allow them or any part of them to be put in evidence, Mr. Flanders?

“Mr . Fla nd ers : Yes.”

Other facts will appear in the opinion.

Mr. James G. Flanders, with whom Mr. Charles F. Fawsett and Mr. William Brace were on the brief, for plaintiffs in error in these cases and for appellants in Nos. 381, 382, 383, 384 and 385 argued simultaneously herewith.1

The evidence, documentary and oral, which the witnesses were required to produce was not shown to be material to plaintiff’s case.

The documentary evidence called for is the property of the General Paper Company or some other of the defendant cor porations. The proceeding, therefore, is a method of compe ling the production of books and documents belonging to par ties to the suit, and it is governed by the rules prescribed or the protection of parties from whom a discovery is deman e ,.

The right of a plaintiff in equity to the benefit of a defendant s oath is limited to a discovery of such material facts as re a e

The plaintiff must show by clear averment the materiality of the documents sought to be disclosed. This rule applies to proceedings under a statute to compel production upon or in preparation for trial. 23 Am. & Eng. Ency. of Law, 176; Owhyee L. & I. Co. v. Tautphaus, 109 Fed. Rep. 547; Condict v. Wood, 25 N. J. L. 319; Bank v. Mansfield, -48 Illinois, 494; Lester v. People, 150 Illinois, 408; Bentley v. People, 104 Ill. App. 353; Wynn v. Taylor, 109 Ill. App. 603; Walsh v. Press Co., 48 App. Div. N. Y. 333; >8. F. Copper M. & R. Co. v. Humphrey, 111 Fed. Rep. 772; Eschbach n . Lightner, 34 Maryland, 528, 533; Jenkins v. Bennett, 40 S. Car. 393, 400; Berry v. Matthews, 7 Georgia, 457, 462, 463.

A plaintiff’s right to any compulsory production of books is strictly limited to such documents as contain evidence relevant to his case. His right to inspect is never larger than his right to read in evidence. The defendant is not compelled to discover his evidence if it cannot tend to establish affirmatively the case of the plaintiff. Hare on Discovery, 187, 198; Compion v. Earl Gray, 1 Y. & J. 154; Bolton v. Liverpool, 3 Sim. 489; • C., 1 My. & K.; Harris v. Harris, 3 Hare, 450; Van Kleeck v. Ref. Dutch Ch., 6 Paige, 600; N. C., 20 Wend. 458.

efore the plaintiff is entitled to the production of a given ocument he must show aliunde that its contents are such as

o entitle him to read it in evidence. He cannot compel prouction in order to prove that he is entitled to production, igram 8 Law of Discovery, § 293; Story v. Lennox, 1 Myl. & 205- Q ’ kangdell on Eq. Pl. § 164; Bligh v. Benson, 7 Price, & W 227^ V ^eaCOn’ 1 Vesey, 27; Barnett v. Noble, 1 Jacob

or w^° required to produce his books of account er ocuments, may seal such portions thereof as he swears

Argument for Plaintiffs in Error. 201 U. 8.

contain nothing relating to the purposes of the discovery sought, and his affidavit that the parts so sealed do not relate to the matters‘in litigation is sufficient protection. 23 Am. & Eng. Ency. of Law, 182; 2 Wait’s Pr. 548; Titus v. Cortelyou, 1 Barb. 444; Robbins v. Davis, 1 Blatch. 238, 242; Campbell v. French, 2 Cox Ch. Cas. 286; Girard v. Penswick, 1 Wilson Ch. 222; Pynchon v. Day, 118 Illinois, 9.

Under Rev. Stat. § 724 it has been held that production will only be ordered where a discovery would be decreed under the same circumstances in chancery. Jacques v. Collins, 2 Blatch. 23. See Caspary n . Carter, 84 Fed. Rep. 416; Birchoffsheimv. Brown, 29 Fed. Rep. 341; Ryder v. Bateman, 93 Fed. Rep. 31; Bloede Co. v. Bancroft & Sons Co., 98 Fed. Rep. 175; Boydy. United States, 116 U. S. 616.

The doctrine is not confined to documentary evidence. It applies also to the case of oral testimony. The materiality of any question must be made to appear before a witness can be required to answer it and before he can be adjudged guilty of a contempt of court for a refusal to answer. The leading case is In re William Judson, 3 Blatch. 148. See also In re Allis, 44 Fed. Rep. 216; Interstate Commerce Commission v. Brimson, 154 U. S. 447.

The evidence, documentary and oral, required to be produced, if material to the plaintiff’s case, is in the nature of incriminating evidence which the witnesses and the defendants are privileged from furnishing to the plaintiff under the Fourth and Fifth Amendments of the Federal Constitution and the well recognized principles of equity procedure.

The discovery which by the orders appealed from the witnesses are required to make, might also tend to subject them to penalties and forfeitures under the laws of the State of Wis consin. Wisconsin Statutes (1898), §§ 1747e, 1747A; Counse man v. Hitchcock, 142 U. S. 547; United States v. Saline Bank, 1 Pet. 100.

The jurisdiction of state authority over trade within the State is as exclusive and unqualified as the jurisdiction of Congress over trade between the States. Addyston Pipe Co. v. United States, 175 U. S. 211 (where injunction previously issued was modified to make it conform to this rule); Allen v. Pullman Co., 191 U. S. 171; National Cotton Oil Co. v. Texas, 197 U. S. 115.

It is the settled law of this court that the Fifth Amendment has no application to state courts and their proceedings under state laws. Pumpelly v. Green Bay Co., 13 Wall. 166; Brown v. Walker, 161 U. S. 591, distinguished.

These Amendments to the Constitution were merely declaratory of the equity and common law rules of evidence, and it was firmly settled by them at the time of the adoption of the Amendments that no person could be compelled to discover any fact, either by producing documents or answering questions, which might subject him either directly or eventually to liability to a penalty or forfeiture, or anything in the nature of a penalty or forfeiture. 1 Daniell’s Chancery Pleading & Practice, 5th Am. ed. *562, 563; 2 Story’s Eq. Jur. § 1494; 1 Pomeroy s Eq. Jur. 202; Livingston v. Harris, 3 Paige, 527; aff’d 11 Wend. 329; Northrop v. Hatch, 6 Connecticut, 361, 363; Livmgston v. Tompkins, 4 Johns. Ch. 432, and cases there cited;

anderveer v. Holcomb, 17 N. J. Eq. 91; United States v. Nawna ead Co., 75 Fed. Rep. 94; Newgold v. American Elec-TT a eC ^8 ^ed. Rep. 341; United States v. Boyd, 116 U. S. 631. ■ ’

thp c°nse(luences which must result to the appellants from passing of the decree prayed for in the complaint are in the the a ^or^e^ure- They should not be required to furnish p t ? en Ce them to such forfeiture. 13 Am. & W Ency. of Law, 54.

witnesses were entitled to decline to answer not only on

Argument for Plaintiffs in Error. 201 U.S.

the ground of personal privilege, but also on the ground that their answers would be the answers of the General Paper Company and the other defendants whose officers and directors they were, and might tend to subject said defendants to fines, penalties and forfeitures and to loss or damage in the nature of a forfeiture. A corporation is a person and as such entitled-to the privileges and immunities of persons. Covington Turnpike Co. v. Sanford, 164 U. S. 578. It performs its functions only through its officers and agents and they cannot be compelled to testify. State v. Simmons Hardware Co., 15 L. R. A. 676; Davis v. Lincoln Natl. Bank, 4 N. Y. Supp. 373; Bank of Oldtown v. Houlton, 21 Maine, 502.

The orders are appealable under the judiciary act of March 3, 1891, and under the act of February 11, 1903, to expedite the determination of suits in equity under the Anti Trust Act and the Interstate Commerce Act.

In appealing from the order of the Circuit Court appellants have followed the practice indicated in the two cases of Interstate Commerce Commission v. Brimson, 154 U. S. 447, and Interstate Commerce Commission v. Baird, 194 U. S. 25. In each case it was held that the application by the Interstate Commerce Commission made a “case” and that the order denying the application was a final order and therefore appealable.

The two cases cited differ from the present ones only in this, that no action was there pending in any Circuit Court to whic the proceedings to compel the testimony of witnesses and t e production of books and papers could be said to be ancillary. Otherwise, however, the proceeding itself was in every substan tial respect the same as that adopted in the present cases.

The words “final decree” have been given a liberal and rea sonable construction as respects the right of appeal. au Claire v. Payson, 107 Fed. Rep. 552.

There may be more than one final order and more than one appeal in the same suit. Trustees v. Greenough, 105 U. . , Tuttle v. Claflin, 88 Fed. Rep. 122; Rouse v. Letcher, 156 U. b. 47.

These proceedings are not properly incidental, but collateral, having a distinct and independent character. They belong to the class known as ancillary, in which the form is determined by the circumstances of each case. So far as the question of appealability goes, they are subject to the same rules as original and independent actions. Krippendorj v. Hyde, 110 U. S. 276, 280, 287; Freeman v. Howe, 24 How. 450, 460; Christmas v. Russell, 14 Wall. 69, 80; Rouse v. Letcher, 156 U. S. 47, 50; Stewart v. Dunham, 115 U. S. 61, 64; Carey v. Houston &c. Ry. Co., 161 U. S. 115, 126; Pope v. Louisville &c. Ry. Co., 173 U. S. 573.

The present proceedings have all the distinguishing characteristics of any suit in equity or action at law.

The test of finality as to any particular order, under the decisions of this court, is this: An order, to be appealable, or final for the purposes of appeal, must be conclusive upon the merits and must leave the matter in controversy in such a condition that if there be an affirmance here the court will have nothing to do but to execute the order it has already entered. Bostwick v. Brinkerhoff, 106 U. S. 3; St. L. &c. R. Co. v. Southern Expr. Co., 108 U. S. 24; Winthrop I. Co. v. Meeker, 109 U. S. 180, Mower v. Fletcher, 114 U. S. 127; Trustees n . Greenough, 105 U. S. 527.

It has been held that the final order or decree in ancillary proceedings is governed by the same rules, in respect of appeals to t e Supreme Court, as the decree in the principal suit. Pope $ ouisville &c. Ry. Co., 173 U. S. 573; Carey v. Houston &c. Ey. Co., 161 U. S. 115; Rouse v. Letcher, 156 U. S. 47.

If, however, there is any question whether the act of February 1, 1903, applies to appeals in such cases as the present, ere can be no doubt of the right of appellants to obtain a reView of the orders appealed from by direct appeal to the SuP erne ourt under the provisions of section 5 of the act of m V' Tow^P Trustees, 179 U. S. 472;

• C. Tel. Co. v. A. A. R. R. Co., 178 U. S. 239; Penn. Mut. ins. Co. v. Austin, 168 U. S. 685.

Mr. Frank B. Kellogg and Mr. James M. Beck, Special Assistants to the Attorney General, with whom The Attorney General was on the brief, for the United States in these cases and in Nos. 381, 382, 383, 384 and 385:

Whether finally admissible or not, the evidence should be given and received before the examiner, inasmuch as all questions of materiality, relevancy and competency must be left primarily for determination upon final hearing by the United States Circuit Court for the District of Minnesota where the cause is pending, and ultimately for decision by this court when the suit shall be considered here on appeal. Blease v. Garlington, 92 U. S. 1.

Had the witnesses, instead of appealing from the order and taking a writ of error from the judgment of contempt, sued out a writ of habeas corpus, this court would have had jurisdiction on appeal from a judgment discharging the writ. Ekiu n . United States, 142 U. S. 651; Horner v. United States, 146 U. S. 120. And it is only the question of the validity of the judgment overruling their plea under the Constitution that can be considered. In re Tyler, 149 U. S. 164; In re Lennon, 166 U. S. 552. A writ of error from the judgment of contempt will bring up no other question. Bessette v. Conkey Co., 194 U. S. 324.

The rule in Blease v. Garlington has been followed in numerous cases. In re Allis, 44 Fed. Rep. 216, contra, is not in point, and it does not appear that Blease v. Garlington was called to the attention of the judge deciding the case.

The evidence was material and admissible. Where the ex istence of the books and papers desired is established, the ability to produce them is shown, and the books and papers are appar ently important and material to the case of the moving party, their production will be required. It is obviously impossi e in applications of this character to determine the material y of all of the contents of the books and papers in a v^c^‘ United States v. Babcock, Fed. Cas. No. 14,484; Coit v. or Carolina, Gold &c. Co., 9 Fed. Rep. 577.

by a subpoena duces tecum to produce books, documents and papers in his possession in the same manner as any other witness. Bischoffsheim v. Brown, 29 Fed. Rep. 341, 343. And the officers of a corporation may be required as witnesses to produce its books when the books are necessary evidence. Wertheim v. Continental Ry. & Trust Co., 15 Fed. Rep. 716; Johnson Steel Street-rail Co. v. North Branch Steel Co., 48 Fed. Rep. 196; Edison Electric Light Co. v. U. S. Electric Ltg. Co., 44 Fed. Rep. 294; S. C., 45 Fed. Rep. 55; Johnson Co. v. North Branch Co., 48 Fed. Rep. 191.

Under issues of the character raised in this cause, the entire manner of conducting the business of the General Paper Company is competent and material evidence. Interstate Commerce Commission v. Baird, 194 U. S. 25.

The claim of privilege is solely a personal one. Wigmore on Evidence, §§2195-2210; Brown v. Walker, 161 U. S. 597.

These witnesses cannot claim the privilege of silence either under the general principles of common law and equity jurisprudence and procedure, or under the Fourth and Fifth Amendments.

It is true that under the ancient practice in actions at common law a party might not compel his opponent to furnish evidence as a witness. His only remedy was by way of a bill of discovery in equity. Wigmore on Evidence, §§ 2217, 2218. This limitation, however, never existed in equity. 1 Greenleaf on Evidence, 15th ed. § 361; 1 Daniells on Ch. Prac. th ed. 885, note 6; Adams on Equity, 7th ed. 36; Wigmore on Evidence, §§ 2218, 2219, pp. 3012, 3014-3016.

A party will be compelled to make a disclosure of all facts wit in his knowledge, or books and documents in his possession, w ch tend either to establish his opponent’s case or to refute

6 position which he himself takes. Bustros v. White, Eng. aw Rep. Q. B. Div. 423; Atty. Gen. v. Emerson and another, aw ep. 10 Q. B. Div. 191; Arnold v. Pawtuxet Valley Water Co'> 18 R. 1.189.

The guaranty of the Fifth Amendment that no person shall be compelled in a criminal case to be a witness against himself does not protect corporations. Brown v. Walker, 161U. S. 591; Interstate Com. Com. v. Baird, 194 U. S. 25; Morgan v. Halberstadt, 60 Fed. Rep. 592; N. Y. Life Ins. Co. v. People, 195 Illinois, 430; State v. Jack, 69 Kansas, 387.

In so far as the penalty or forfeiture may be criminal in its character the guaranty of the Fifth Amendment applies, and is entirely saved by the immunity statute; in so far as the penalty or forfeiture is other than criminal, in so far as it involves the loss or forfeiture of the claim to a continued violation of the laws of the land, there is no principle either of constitutional law or of equity jurisprudence which may be invoked to relieve against it.

It was settled at an early date that pecuniary loss to the witness was not one- of the penalties or forfeitures intended to be protected against by the Constitution. See opinion of Chief Justice Shaw in Bull v. Loveland, 10 Pick. 9, which has been followed uniformly by all of the courts in the United States. 1 Greenleaf on Evidence, 15th ed. §452; Lowney v. Perham, 20 Maine, 240; Ward v. Sharp, 15 Vermont, 115; Harper v. Borough, 6 Ired. 30; Robinson v. Neal, 21 Kentucky, 212.

Mr . Just ice Mc Kenna , after stating the case as above, delivered the opinion of the court.

Plaintiffs in error urge three main contentions, which we will consider in their order.

I. That the evidence, documentary and oral, which the witnesses were required to produce, was not shown to be material to plaintiff’s case.

1. There are three answers to this contention. (1) The evidence is clearly material. The charge of the bill is that the defendant manufacturing corporations entered into a conspiracy and combination in violation of the act of July 2, 1890, to suppress competition between themselves, and that they accomplished this purpose by organizing the General Paper Company, and gave it certain controlling powers over the output of the mills and thé prices and distribution of their products.

“Q. State whether those books show the amounts, kinds or grades of paper manufactured by the defendant Northwest Paper Company and sold by or through the defendant General Paper Company as the exclusive sales agent of the defendant Northwest Paper Company since the 8th day of April, 1902, or since about the 1st of May, 1902, if that is the date the business commenced.

“Same objections by defendants, and the witness given the same advice.

“Q. You decline to answer?

“A. I decline on advice of attorney.

‘ Q. Do the books also show where the said paper so manufactured was sold and into what States and Territories it was shipped since the 8th day of April, 1902, or the 1st day of May, 1902?

Mr . Fland ers : I wish to make the same objections, and I give the witness the same advice.

UA. Same answer.”

And counsel for the United States, not only as to the matters expressed in the foregoing questions, but as to other matters

which the bill charged against the companies, and which had een inquired about, said, that he desired to use the books and o er them in evidence to show such matters. An inspection

° the books was refused, and all evidence of their contents withheld.

Necessarily the books contained the information. The paper company was the selfing agent of the Northwest Paper Com-

2. The claim of immateriality of the testimony cannot avail plaintiffs against the orders of the Circuit Court. The procedure before an examiner and his powers are explained in Blease v. Garlington, 92 U. S. 1. It is there said: “The examiner before whom the witnesses are orally examined is required to note exceptions; but he cannot decide upon their validity. He must take down all the examination in writing, and send it to the court with the objections noted. So, too, when depositions are taken according to the acts of Congress or otherwise, under the rules, exceptions to the testimony may be noted by the officer taking the deposition, but he is not permitted to decide upon them; and when the testimony, as reduced to writing by the examiner, or the deposition, is filed in court, further exceptions may be there taken. Thus both the exceptions and the testimony objected to are all before the court below, and come here upon the appeal as part of the record and proceedings there. ”

3. These writs of error are not prosecuted by the parties in the original suit, but by witnesses, to review a judgment of contempt against them for disobeying orders to testify. Being witnesses merely, it is not open to them to make objections to the testimony. The tendency or effect of the testimony on the issues between the parties is no concern of theirs. The basis of their privilege is different from that and entirely personal, as we shall presently see.

II. That the documentary evidence called for was not shown to be in the possession or under the control of the witnesses. This contention is untenable. The ground of it is that the possession of the witnesses was not personal, but was that of the respective corporations of which they were officers. Granting this to be so and that the witnesses could have set up whatever privileges the corporations had, nevertheless they had the custody (actual possession) of the books and were summoned from necessity as representing the corporations. It is hardly necessary to observe that the witnesses had all the possession human beings could have had or can have, and if the objection is to prevail the books of a corporation can be withdrawn from the reach of compulsory process.

It is as useless as attempting to demonstrate that twice two make four, to say that a corporation can have possession of not ing except by the human beings who are its officers, and 1 is to them, not the intangible being they represent and act for,

Ekc- Co- v- Je^rey Mfy- Co-> 83 Fed- ReP- 614;

Guns & Am- Co- Ltd-> V- Patent Firearms Mfg. p"’ Rep' 39 ’ P^ian Comb Co. v. Eschwege, 92 Fed. Rep. 721; 281 • FrT 8® Fed- Rep. 529; Appleton v. Ecaubert, 45 Fed. Rep. rn Ä Co- V- U- S- EUc- 45 Fed- ^P- 55, 59; John, r.] r u Tr RaR G°' V‘ North Branch Steel Co., 48 Fed. Rep. 196; Adee Brown v w Works, Fed- Rep. 39; Lloyd v. Pennie, 50 Fed. Rep. 4; Fed Ren Fed- ReP- 20; MacWilliam v. Conn. Web. Co., 119

III. That the evidence, documentary and oral, required to be produced, was in the nature of incriminating evidence which the witnesses and the defendants are privileged from furnishing to the plaintiff under the provisions of the Federal Constitution and the well recognized principles of equity procedure.

This contention asserts rights personal to the plaintiffs and rights of the corporation defendants in the suit. The basis of both rights is the protection of the Fourth and Fifth Amendments to the Constitution of the United States.

The argument submitted is substantially the same as that made by appellants in Hale v. Henkel and McAlister v. Henkel. It is insisted that the immunity 1 given by the act of February 25, 1903, is not as broad as the penalties and forfeitures to which the plaintiffs in error or the corporations of which they are officers will be subjected. If the immunity, it is urged, protects from the penalties of the Anti Trust Act of 1890 it doesnot protect, nor has Congress the power to protect, from the penalties of the Minnesota laws, which make criminal a combination and conspiracy in restraint of trade and subject to forfeiture the charters of corporations who become parties to such combination and conspiracy. Sections 6955, 6956, 5962, Statutes of Minnesota, 1894.

The extent of the immunity and its application to corporations was considered in Hale v. Henkel and McAlister v. Henkel, and decided adversely to the contention of plaintiffs in error.

ALEXANDER v. UNITED STATES.

WHITING v. SAME.

STUART v. SAME.

GENERAL PAPER COMPANY v. SAME.

HARMON AND GENERAL PAPER COMPANY v. SAME.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR

THE EASTERN DISTRICT OF WISCONSIN.

Nos. 381, 382,383,384, 385. Argued January 5, 8,1906.—Decided March 12, 1906.

In a suit in a Circuit Court of the United States brought by the United States against corporations for violations of the Anti Trust Law of July 2, 1890, a witness refused to answer questions or produce books before the examiner on the ground of immateriality, also pleading the privileges of the Fifth Amendment; the court overruled the objections and ordered the witness to answer the questions and produce the books; an appeal was taken to this court. Held, that:

While such an order might leave the witness no alternative except to obey or be punished for contempt it is interlocutory in the principal suit and not a final order, nor does it constitute a practically independent proceeding amounting to a final judgment, and an appeal will not lie therefrom to this court.

If the witness refuses to obey and the court goes further and punishes him for contempt there is a right of review, and this is adequate for his protection without unduly impeding the process of the case.

The facts are stated in the opinion.

Mt - James G. Flanders, with whom Mr. Charles F. Fawsett and Mr. William Brace were on the brief, for appellants.1

Mr . Just ice Mc Kenn a delivered the opinion of the court.

At the very beginning we encounter a question of jurisdiction. Are the orders of which the appellants complain appealable? The orders direct the appellants respectively to appear before Robert F. Taylor, special examiner in the case, at the time and place to be designated, and directs each of them to “answer each and every question put to them respectively by the counsel for the complainant, the United States of America, ” and to produce before such commissioner certain books, papers, records, documents, reports and contracts, “for the purpose of their respective examination in said cause, and for use in evidence of the complaint of the United States of America in said examination. ” And it is ordered that the complainant’s counsel shall have the right to inspect the said books, etc., and to introduce them or any of them in evidence; but, except as necessary for such purposes, the books, etc., to remain in the custody of the appellants. .

The Manufacturers’ Paper Company, it is alleged, is a New York corporation, with its principal place of business in Chicago, and from about the year 1897 to 1902, acted as the sales agent of various manufacturers of paper for the sale of newsprint and other papers; that in 1902 it became a party to the combination and conspiracy alleged in the bill and agreed with the General Paper Company not to compete with it in certain territories.

As we have said, the court entered orders requiring the appellants to answer the questions put to them and to produce the books, papers and documents requested. Appeals were allowed to this court. To justify the appeals, appellants contend that the orders of the Circuit Court constitute practically independent proceedings and amount to final judgments. To sustain t e contention, Interstate Commerce Commission v. Brimson, 154 U. S. 447, and Interstate Commerce Commission v. Baird. 194 U. S. 25, are cited.

Those cases rested on statutory provisions which do not apP y to the proceedings at bar, and, while there may be resemances to the latter, there are also differences. In a certain sense finality can be asserted of the orders under review, so, in a certain sense, finality can be asserted of any order of a court.

“I am of opinion that the mere direction of the court to the witnesses to answer the questions put to them and to produce the written evidence in their possession is not a final decision, that it more appropriately is an interlocutory ruling or order in the principal suit, and that if the witnesses refuse to comply with it and the court then exercises its authority either to punish them or to coerce them into compliance that will give rise to another case or cases to which the witnesses will be parties on the one hand and the Government, as a sovereign vindicating the dignity and authority of one of its courts, will be a party on the other hand. I have no doubt that a judgment adverse to the witnesses in that proceeding or case will be a final decision and will be subject to review by writ of error, but not by appea. My opinion is also that the parties to the principal suit canno appeal or obtain a writ of error from that decision.

See also Logan v. Penn. R. R. Co., 132 Pa. St. 403, 410. This court having no jurisdiction, the appeals must be is missed, and 7 ,