In re Bornn Hat Co.

184 F. 506 | U.S. Circuit Court for the District of Southern New York | 1911

HAND, District Judge

(after stating the facts as above). The only precedent for the subpoena is In re American Sugar Refining Company (C. C.) 178 Fed. 109, and Wigmore, vol. 5, p. 219, § 2200. It is quite true that Wigmore’s method is somewhat different, but it is a stronger exercise of power than the present subpoena and less in accordance with past analogies. The question of what sanction the court can apply is not up at present. No good reason exists why subpoena duces tecum should not lie against a fictitious being which is subject to subpoena ad respondendum, and to a writ of sequestration. Some archaic procedure may perhaps have to be revived; but the law has an adequate arsenal, if the corporate entity be contumacious, even though no individual aid the contempt affirmatively.

The more substantial question is of the right against self-incrimination. Whatever be the necessity to the decision of that part of the opinion of Mr. Justice Brown in Hale v. Henkel, 201 U. S. 43, contained on pages 74 and 75, 26 Sup. Ct. 370, 50 L. Ed. 652, I do not feel at liberty to disregard the language there, used. The opinion was of a majority of the court, and the two concurring opinions did not question that corporations were not within the fifth amendment. Moreover, the dissenting opinion concerned itself expressly and solely with that point. It is quite plain that whether or not a Circuit Court has ever the right to disregard expressions found in the prevailing opinions of the Supreme Court, because they are not necessary to the decision, this is not such a case. The expression in question was certainly deliberate, and as such no lower court should disregard it even if unnecessary. The respondent insists that by a long series of precedents corporations are persons within the bill of rights, and that, at least if a part of the “people” to be protected by the fourth amendment, they are “persons” within the fifth. Those are considerations solely for the Supreme Court; they do not concern a judge of first instance.

No question is made of the sufficiency of the subpoena, i. e., of its too great generality. The defendant Bornn had no right to be sworn; any one could produce the books, and it need not be he; his privilege is not the corporation’s, and may be disregarded when the question is merely of the production of the books.

The result is, of course, to give the grand jury inquisitorial powers. Its temporary constitution and its popular character must be the guaranty against their abuse. Had our law in fact evolved into the form which once seemed likely, the privilege would have existed only against mere executive inquisition, without prior charge or presentment by which the inquiry could be limited and abuse avoided. But it did not so develop. The privilege against “ex officio” oaths merged into the larger privilege in all tribunals which we know to-day. Wigmore, jj ■2250. It is either absolute or it is nothing, and, as the grand jury is given general powers of inquisition, such powers must have their proper scope wherever the privilege in its extreme form does not exist. If evils arise from this, we have perhaps to thank those tyrants who made detestable even the legitimate powers of the crown to inquire into the commission of crime, and so thwarted a development to which we seemed likely to become entitled.

Therefore I must direct the corporation to produce the books for the inspection of the grand jury within 10 days under a penalty of $500.