FEDERAL REPORTER,
vol. 44.
This case has given me deep concern, and the questions involved have embarrassed me no little. As owing to the amount involved in this suit there is no appeal from the judgment herein, and the decision involves such a large sum of money, I have given the case due consideration. In view, therefore, of the gravity of the situation, I have concluded to reconsider my former opinion, and to grant the motion for a new trial, in the hope that the case may receive the attention of the circuit judge on retrial. The motion for a new trial is sustained.
In re
CoUNSELMAN.
(Otrmdt Ocmrt, N. D. I/,linO'f,s. December 11,1800.) PRIVIT,EGEOll' WITNESS-GRAND JURy-CONSTITUTIONAL LAW.
UnderRev..8t. U. S. § 860, "no ** * evidence obtained from 8 partY or witness by means of a judlCial proceeding * * * shall be given in 'any evidence, 'or in any manner nsed against him * * * in any court of the U,nited States, in any criminal proceeding, It a witness before a grand jury which is inv;estigatinl{ alleged violations of the interstate commerce law by acertain railroad dompany ca'nnot claim the privileges of the fifth aIDendment to the LJnited States constitution,' which provides that no person shall be compelled to be a witness against himself in a criminal case, and refuse to answer questions on the ground that the answer would tend to criminate him.
\,Petition for Writ of Habeas Corpus. Mr. Milchrist, U. S. Dist. Atty., Mr. Ingham,and Mr. Lambertson, for the United States. J.M. Jewett and Sid,My Smith. for Counselman. : G.' M. 08born, for Rock Island Railroad Company. 'GRESHAM, J. On November 20, 1890, the grand jury for the northem district of Illinois was engaged in investigating alleged violations of the interstate law by the officers and agents of the Chicago, Rock Island & Pacific Railway Company, the officers and agents of the Ohicago, St. ,Paul & Kansas City Railway Company, and the officers and agEmtsof the Chicago, Burlington & Quincy Railroad Company, and, in obedience to a subprena served on him, Charles Counselman, a commission' merchant of Chicago, who was engaged in shipping grain from points west of Illinois to the cily of Chicago, over all or some of the roads named, appeared" and was sworn as a witness. After testifying that during the summer of 1890 he had received grain over the Rock Island and' Burlington roads, he refused to answer the following questions propounded to him '1y the grand jury, for the reason that his answers would tend to criminate him:
. ",'Have you, during the past year, Mr. Counselman, obtained a rate for the transportation of your grain on any of the roads coming to Chicago from points outside of thi 13 state lesstban the tariff or open rate? Dlirin'g'the' past year, have you receiyed rates upon the Chicago, Rock Island &
IN RE COUNSELMAN.
269
BurUngton from points outside of the state to the city of Chicago at less than the tariff rates? Have you, or the firm of Charles Counselman & Company, received any rebate, drawback. or commission from the Chicago. Rock Island & Pacific Railroad Company, or the Chicago, & QUincy Railroad Company, on the transportation of grain from points in the sLates of Nebraska and Kansas to the city of Chicago. in the state of Illinois, during the past year. whereby yon secured transportation of said grain at less thl}n the tariff rate established by said railroads?" . On November 22, 1890, the grand jury appeared in the district court, and informed it, in writing, of the questions which had been submitted to Counselman, and of his refusal to answer the same, and asked for direction in the premises. The court at once entered an order requiring Counselman to show cause why he should not answer the questions. Counselman appeared by counsel,.and, after argument, the court ordered that the witness appear before the grand jury without delay, and make full answers to the questions which he had refused to answer. 'On November 25th, the grand jury again appeared in open court,· and filed a written report, showing that the questions had been repeated to Coun:' selman, and he had refused to answer them, giving the same reason therefor that he had given in the first instance; and, being present in court, and stili persisting in his refusal, it was adjudged that he was in. contempt, that he be fined $500, and held in custody by the marshal until he paid the fine, and made full answers to the before the grand jury. Counselman was taken into custody, after which he filed his petition before this court, alleging that the action of the grand jury and the district court was unauthorized and void, and praying that a writ of habeas corpus be issued, directed to the marshal,requiring him to bring the petitioner before this court, and that he be discharged from arrest. In his return the marshal set up the order of the district court as his authority for depriving the prisoner of his liberty. . The fourth amendment to the constitution of the United States declares that the people shall be secure in their persons, houses, papers,andeffects against unreasonable searclles and seizures, and the ment declares that no person shall be compelled in any criminal c.aS6 td be a witness against himself. It was urged in behalf of Counselmari that the questions which he refused to answer violated the privilege secured to him by these amendments. By the interstate commerce law,jt is made a criminal offense, punishable by fine and imprisonn'lent; for any officer or agent of a railroad company to grant to any shipper of chandise from one state to another, and for any shipper totontrllctfot or receive, a rate less than th e tariff or open rate. Shippers,a;s well as officers, agents, and employes of corporations engaged in the carrying business between states, are made subject to the penalties of the 'statute; Section 860 of the Revised Statutes Of the States declares that""'::' " No pleading of a party, nor any discovery or evidence obtained frolll party or witnoss by means of a jUdicial proceeding in this or any foreign try. shall be given in evidence, or in any manner used against him. or bis propert.y or estate, in any court of the United States, in any criminal pmceeding. or for tbe enforcement of any penalty or forfeiture," , '
270
Under the fifth amendment, a person cannot be compelled to disclose facts before a court or grand jury which might subject him to a criminal prosecution, or his property to forfeiture. If, however, there be a statute which declares that the testimony of a witness in a case or proceeding shall never be repeated against him or his property in any other case OJ: proceeding, there is no necessity for claiming the privilege secured by the amendment. If the protection of section 860 is co-extensive with that of the constitution, a witness is entitled to no privilege under the latter. In effect, Counselman says: If 1 should answer the questions, it would appear that I have violated the interstate commerce law, and my admissions might be offered against me hereafter. The sufficient answer to that position is, should he hereafter be prosecuted for the offense, section 860 would not permit his admissions to be proven against him. The privilege cannot be claimed when it appears that the witness has been acquitted or convicted of the offense about which he is asked to testify, that he has been pardoned for it, or that it has been barred by lapse of time; and, should Counselman answer the questions which he refused to answer, his disclosures could never be used against him or his property in any subsequent proceeding. Boyd v U. S., 116 U. S. 616, 6 Sup. Ct. Rep. 524, is relied on as justifying Counselman in his attitude before the grand jury. That was an information agllinst35 cases of plate-glass, which had been seized as forfeited to the United States for fraud against the customs laws. The penalty prescribed by the section under which the seizure was made was fine and imprisonment, and forfeiture of the merchandise fraudulently entered. The information charged that the alleged fraud was committed by the owner of the goods. The owner entered a claim for the goods, and.in his answer denied that they had become forfeited. It became necessary to show the quantity and quality of 29 cases of plate-glass previously imported by the owner, and. for the purpose of doing that, the district attorney offered in evidence an order which he had obtained from the district judge, requiring the claimant to produce the invoice of the 29 cases. The owner obeyed the order under protest, insisting that he could not be reqniredto furnish evidence against himself, and that the statute under which the district attorney had obtained the order was in violation of the fourth ancI fifth amendments to the (·onstitution. The invoice was read in evidence, and there was a verdict and judgment of forfeiture against the property. The statute under which the district court entered the order for the production of the invoice. declared that if do defendant or claimant failed or refused to produce any book, invoice, Qr paper, in obedience to an order of the court for its production, the &1contained in the petition for the order should he taken as confessed. . The supreme court held that, although the proceeding was in form one agaillst the property, it was, in effect, against -the ownerfqr its forfeiture, aqd that the orde.r:ofthe district court, and the statute under which it was were both in violation of the fourth and fifth amendments. This case is clearly distinguishable from the Counselman case. In the fotmer
IN RE PEASLEY.
,271
the owner was treated as defendant, (lnd he was required to produce evidence upon which a judgment of forfeiture might be entered against his own goods. ' Coilnselman refused to testify in a proceeding before the grand jury, to obtain evidence, not upon which he might be indicted, but upon which others might be indicted. It is further urged in behalf of Counselman that, should he testify before the grand jury in obediencl3 to the order of the district court, he mijl;ht disclose facts and circumstances which, although immaterial in themselves, would open up sources of information to the government, whereby it might obtain evidence not otherwise obtainable to secure his conviction, and that therefore the immunity secured by section 860 is not equal to the protection of the fifth amendment. That amendment was adopted, not to shield men from the consequences of their crimes, but that they might not be obliged to nish evidence of their own guiltj and when the disclosures of a witness, however guilty they may show him to be, can never be repeated in any subsequent proceeding against him or his property, he is as fully protected as the constitution intended he should be. If, through threats or fear of violence, a man confesses that he has committed murder,' and states who was present at the time, and where the weapon and the dead body may be found, and he is afterwards put on trial for the otfense,he cannot be confronted with hisconfessionj but the person who saw the crime committed is a competent witness, although the prosecutor might never have known there was such a witness but for the confession,and it may ,be shown by others that the weapoqand dead body were found " ,where.the defendant said they could be found. The' petition is dismissed; and the petitioner will remain in the custody of the marshal.
Inre
PEASLEY.
(Cif'Cidt Court, N. D. nZinoiB. December 11. 1890;)
1.
PRIVILEGE Oll' WITNESSES-GRAND JURy-CoNSTITUTIONAL LAW.
Where the testimony of a witness before a grand jury', W.hiCh is investigating alleged violations of the interstate commerce law by tbeagent of a railroad company, show!! that such witness is not himself guilty of the offense, he. cannot refuse to prod.uce certain documents demauded by the gratid jury on the ground that their production will tend to criminate him. An officer of a railway compan'y doing business between states, when a witness before the gJ'and jury, investigatIng alleged violations of the interstate co!Dmerpe law, cannot refuse to produce certain documents demanded by the grand jury, on thegroulld that their production would tend. to criminate the company, as such a company isuot criminally for violations of the interstate commerce law,nor subjecli to its penalties and forfeituJ'es. ,
. '
2.
SAME-INTERSTATE COMMERCE LAW.
Petition for Writ· of Habeas Coryus. Mr. Milchrist, U. S. Diat. Atty., Mr. and Mr. Lambert8tm, for the United Stiltes. ', John HetTick and Dawes,forChiqago, B,,&Q. ,
272
FEDERAL
I
Sidney Smith, for J. C. Peasley. GRESHAM, J. The grand jury was engaged in the investigation of alleged violations of the interstate commerce law, by Thomas Miller, general agent of the Chicago, Burlington & Quincy Railroad Company, and on November 26, 1890, James C. Peasley appeared in obedience to a aubpama duces tecum commanding him to bring before the grand jury specified papers. After being sworn Peasley answered some questions propounded to him and refused to answer others, and he also refused to produce the papers described in the subprena. The grand jury thereupon appeared in the district court and submitted the following report: "To the Hon. Henry W. Blodgett, Judge of said Court: The grand ju-
rors in attendance upon said court respectfully report that on the 26th day of November. 1890, they were engaged in investigating and inquiring into certain alleged violations of an act of congress, entitled -An act to regnlate commerce,' approved February 4, 1887, and tile amendments thereto, approved March 2,1889, by Thomas. Miller, general agent of the Chicago, :Burlington &; Quincy Railroad Company, said company being a common carrier, subject to the provisions of said act of congress; that on the said 26th day of November one James C. Peasley, in obedience to a subpama duces tecum theretofore served upon him, commanding him to bring all checks paid to or given to Oliver Gallup or O. D. $. Gallup, or anyone by the name of Gallup. at any time during the year last past, by the Chicago, & Quincy R. R. Company, or any officer thereof, for cj)mmissions for services rendered by said GallUp for said company, or for pretended services rendered by said Gallup for said company, or for any other cause, together with the bills rendered by said Gallup for the services or pretended· services for which said checks were issued, ,and the vouchers, of said company upon which said checks were issued, In obedience to said sUbpoona said James O,Peas!ey appeared before said grand jury, and. being first duly sworn, questions were propounded and submitted to the said witness, and certain answers and certain refusals to answer were made by the said WItness, with the grounds for such refusal, touching the matters under investigation, and the papers and documents mentioned in said subpcena duces tecum, which questions, answers. and refusals are as follows: .... ... ... Question. What is yonr business? .1nswel', I am the .treasurer of the Chicago, Burlington & Quincy Railroad Company. Q.' What are your duties as such treasurer? A. 'fo supervise. in a. way, the .collection olmoneys due to the company. and the proper dis;blli"Selllents moneys. Q. When checks have been given by the company to any·one, and those checks have been paid and returned to the comw1)9\$e custody are they then? A, I su ppose they are in the custody of 'the company. They are held by Mr. William G. Gordon, the assistant auditor of the company, who checks up the bank pass-book. Q. Are such checks un·der your . control and direction? A. 'fhey are. Q. A .subpoona has been 'served on yort to prod uce before this grand jury all checks paid to or gi ven to :qliver Gallup., or O. D. S. Gallup. or anyone by the name of Gallup, at any time during theyearlast past, by the Chicago, Burlington & Quincy Railroad Company, or any officer thereof, for commissions for services rendered by said Gallup for, said company. 01' for pretended services rendered by said Gallup for said company. or for any other cause, together ·withthe bills rendered by said Gallup for the services, \?r pretended services. for which said checks were issued. and the vouchers of said company. upon which said checks were issued. ,Have you those documents with you? A. I have not. Q. Why not? .1. Because 1 was advised by counsel not to briIlg them; . Q. Do you refuse
273
to produce those documents before this jury, in obedience to the subpcena? A. I do. Q. Why? A. Berause I am advised by counsel that it might tend to criminate myself. Q. Do you refuse to produce them for any other reason than that they might tend to criminate yourselfi' A. WI'll, I decline by advice of counsel. Q. Do you base your refusal upon the ground that the production of those papers would tend to criminate yourself? A. On the ground that it might tend to criminate myself. Q. To whom do those papers belong? A. To the Chicago, Burlington & Quincy Railroad Company. Q. Had you ever seen the checks described in the subpcena before you were subpumaed to produce them in court? A. No; I have never seen them before or since. Q. Had you ever O. K. 'd any of the checks or vouchers upon which the checks were issued? ..4. I had not. Q. Did you in any wise authorize the giVing of the checks, or the making up of the vouchers upon which the checks were issued? A. I never gave any authority of any kind in regard to the vouchers. I did authorize by general orders the drawing of checks by our cashier in payment of vouchers properly approved. Q. To Mr. Gallup? A. No; except under general orders to issue checks to pay approved vouchers. In other words, he was authorized to pay such claims as were presented to him to pay if properly approved. Q. Did you yourself have any knowledge of the consideration for which these checks were given, or of the transaction out of which they grew? A. I did not. Q. Did you know prior to the time a subprena was served upon you to produce these documents that Baid documents were in existence? A. I did not. Q. What officer in your companynow has the documents mentioned in the subprena in his pOsst·ssion i' A. That is a pretty broad question. It is one I could not answer fully. It is beyond my power. Checks, as I have explained, are in the custody of the assistant auditor, who checks them over. Q. Do you know where the documents mentioned in the Bubpcena now are? A. I do not. Q. Have you given orders or directions to any person not to produce the documents mentioned in the subprena? A. Yes; I have. Q. To whom did you give those orders? A. To Mr. Fabian, who is the cashier, and to Mr. Gordon, who is the assistant auditor. Q. When did you give those orders? A. To Mr. Gordon this morning. and to Mr. Fabian one day last week. I don't remember the day. Q. Were the orders to Mr. Fabian delivered by you after the service of this present subpcena upon you, or the orders to Mr. Fabian given aftel' the first subprena upon you? .d. Yes; they were. Q. Did you give those ordl'1fs to the gentlemen whom you have mentiont'd for the purpose of preventing them from producing those documents before the grand jury? ..4. I did, and by advice of counsel. Q. Upon what ground did you give such orders? A. That the papers might tend to criminate them and to criminate lIIe. Q. Your refusal to produce the checks. papers. and doeuments referred to in the subprena is based solely upon the ground that the production of the same might tend to criminate yourself? A. I wish to add that whatever papers and books of the Chicago. Burlington & Quincy Railroad Company are in my custody and control are so only in my custody as an agent and employe of the company. I have no authority from the company to produce any such books or papers before the grand jury, or to furnish them for inspection by the grand jury. I decline to produce the bOOks and papers described in the subprena for the reason aforesaid, and because the production thereof would tend to criminate the Chicago. Burlington & Quincy Hailroad Company, and would subject it to penalties and forfeitures. Q. If those checks and other documents mentioned in the subpcena are in existence. can you produce them if ordered to do so by the court? A. lean.' The grand jury further report and say: That prior to the appearance before it of the said James C. Peasley, as a witness, testimony had been hflard by said grand jury tending to show that certaineheckshad been given and paid to one O. D. S. Gallup, by certain
v.44F.no.4-18
274
nDERAL REPORTER,
of said Chicago, Burlington & Quiney Banroad Company, on behalC of said company, and that said checks were ostensibly given in payment of pretended services, but that.in fact they were gh':en as a rebate, refund, or. drawback on grain transported from points in other states to the city of Chicago, in the state of Illinois, Whereby the consignees of such grain were enabled to obtain a less rate than the rate established by said company, which said payments, rebates, drawbacks, and commissions were paid under an arrangement and agreement withtbe said Thomas Miller, general freight agent of the said Chicago, Burlington & Quincy RailfQadCompany, and pur· suant to hill orders, and on vouchers certified by bim. "JCJBN W. CHERRY, Foreman." Peasley ruled to show cause why he should not answer the questions he hnd refused to answer, and produce the papers and documents he had refused to produce, and, failing to do so to the satisfaction of the court, it was ordered that he appear before the grand jUry without delay, and make answer to the unanswered questions, and produce the papers set forth in the report. B;eappeared before the gral1d jury in obedience to this order, and, upon being intenogated as before, again refused to answer the questions, and he also refused to produce the papers before demanded, for the reasons thatbis answers to the questions would tend to criminate him, and that the production of the papers and documents would also tendto criminate him, and subject the Chicago, Burlington & QuiucyRailroad Company,ofwhich he was an agent, to penalties and forfeitures. 'thE! grand jury again appeared in open court, and submittedanotber report,. ioforming theoourt that Peasley still refused to answer the questions and deliver the papers demanded,and, being preeent in person and by counsel, and persisting in hisrefUSl11, he was adjudged to be in contempt, fined in the sum of 8500; nnd ordered into the custody of the marshal, to btl held until he paid the fine, answered the questions, and produced the papers·. After Peasley had been taken into custody, he presented his petition, reciting the foregoing facts, and praying that a writ of habetJ8 C01'p'U8be issued, directed to the marshal, requiring him to bring the petitioner before the. court, and that upon a proper hearing he be discharged. The petition averred' that the fourth and fifth amt:lndments to the constitution of the United States justified the attitude of the petitioner before the grand jury and. the district court, and that the,action of both was without jurisdiction and void. It appears from the first report of the granrl jury that Peasley's examination was limited to a criminal charge against Miller. Evidence had already been obtained tending to show that Miller had violated the stat, ute, and it was deemed necessary that the grand jury shOUld see the papers which Peasley was asked to produce. He that while, by general orders, he had authorized the payment of checks on vouchers 'properly approved, he had never seen or approved the papers described in the subpama; that he had no knowledge of the consideration for which the Gallup checks were given, or of the transactions of which they grew; that he did not even know of thE(existence of the checks or papers when he was served with the subprena requiring him to produce themj that after he heard of their existence, he ordered the officers in whose
IN BE
MANNING.
275
custody they were to hold them, and not produce them before the grand jury; that he had no authority from. the company to produce the papeTE' called for, or any others, and that he declined to produce them for the reason that their production would tend to criminate him and the company, and subject it to penalties and forfeitures. Peasley's testimony shows that he was not guilty of the offense which the grand jury was investigating, and therefore the production of the papers demanded would not criminate him. He needed no privilege, and his refusal to produce the papers was unauthorized. If, however, the showing which he made before the grand jury had been different, and it had appeared that the production of the papers might criminate him, then, for the given in the Coun8elman Ch8e, ante, --, he could not claim immunity under the fourth and fifth amendments. If a witness cannot claim the privilege for the benefit of himself, he cannot claim it for the benefit of another, and Peasley's refusal to produce the checks and vouchers, because their production would tend to criminate the company, of which he is an officer, is based upon nothing ill the interstate commerce law or the constitution. Corporations acting as common carriers between states are not liable criminally for violations of the interstate commerce act, nor are they exposed to its penalties and forfeitures. For some reason, satisfactory to congress, only the officers of such corporations and shippers maybe punished for violating the statute. It follows that the order of the district court, adjudging Peasley in contempt, and that he be fined and imprisoned, was authorized, and he will remain in the custody oJ the marshal.
In re 'MANNING. (matrret CO'lLrt, S. D. New York. December 16. 1890.) PRAOTTOB-Col'lTBMPT-WRIT TO FOREIGN DISTRICT.
A writ. or order for t.he punishment of an officer of t.he court. for contempt nnder section 'r25, Rev. St., cannot run to the marshal of another district. The accused, i.f in anot.her district, can only be reached through a proceeding for his arrest there, as for a·criminal offense, and then must be transferred by order of the court there, section 1014, Rev. St. in that section the clause "or any state where he may be round" applies to the magistrates therein previously named. Following U. S. v. CU8e,.llBlatchf.250.
In Bankruptcy. Evarts, Choate Beaman, for application. BROWN,I. The desired writ. which is for the punishment ofat;lofficer of the court for contempt in not paying over money as ordered, should not be ad'dr'e8sed to any marshal beyond the territorial jurisdiction ofthe court. A United States court cannot send its process into another diatrict, except where specially a\lthori,zed so to do by some act of congre!ls.
276'
REPORTER, vol. 44.
E'.l pam Graham, 3 Wash. C. C. 456, 462. Subpoonas are thus author- ' ized to the distance of 100 miles. Such contempts as fall within section 725 of the United States Revised Statutes are criminal offenses against the United States, (Fischer v. Hayes, ] 9 Blatchf. 13,6 Fed. Rep. 63; In re Pitman, 1 Curt. 186; New Orleans v. Stearn-Ship Co., 20 Wall. 387,) and must be unhesitatingly punished. The accused person may be reached by proceedings under section 1014 when found in anotherdistrict, and may be arrested there, and then transferred in the usual manner under that section; the proceedings there being based upon the writ of attachment previously issued by the court having jurisdiction of the cause. For all ordinary crimes there is no other means of reaching persons in other districts. No process issues from the judge or court of one district to the'marshal of another district. The transfer-is made pursuant to section 1014 only. Proceedings in extradition cases under section 5270 stand on a wholly different footing. In re Henrich, 5 Blatchf. 414, 421. I have not been referred to any United States statute or precedent that authorizes the process of the court in cases of contempt or of any ordinary criminal proceeding to run to the marshal of another district. In section 1014 the clause" or any state where he may be found," and the next following clause, are both of them qualifications and limitations applicable to all the magistrates previously named in that section. It was thus construed and applied in U. S. v. Case, 8 Blatchf. 250. The above view is in accordance with the decision of Judge WITHEY in the case of U. S. v. Jacobi, 4 Amer. Law T. R. 148, 151, where a similar question was examined at length. The warrant must be limited to the marshal of this district.
In re GoOCH. STATE OF
MINNESOTA
V.
GOOCH.
(C<£rC'UU Court, D. Minnesota, Third. Divis£on. November 25,1890.) CONSTITUTIONAL LAW":"INTERSTATE COMMEROE-OLEOMARGARINE-ORIGINA,I, PAOKAGES.
One who sells oleomargarine in the original package, as imported into the state from another state, is not subject to arrest under a law of the state in whicq the sale ocours entirely forbidding the sale of oleomargarine, as sUflh statute is ali unconstitutional interference with interstate commerce. Following LetB'II v. HWid.in, 135 U. S. 100, 10 Sup. Ct. Rep. 681.
Habeas Corpus. John B. &: W. H. Sanborn, for petitioner. W:D. Cornish, for the State. . NEI;SON, J. The petition of Charles E. Gooch is presented"praying for a writ of habeas corpus to discharge him from an imprisonment alleged to be in violation of the constitution of the United States. The is-