201 Ill. 236 | Ill. | 1903
delivered the opinion of. the court:
It is first contended that the amendment of 1893 (secs. 7a and 76) violates section 10 of article 2 of the constitution of Illinois, which provides that “no person shall be compelled in any criminal case to give evidence against himself,” and the fifth amendment to the constitution of the United States, which provides that “no person * ® * shall be compelled, in any criminal case, to be a witness against himself.” This contention must be sustained, unless the objection to the statute is removed by the immunity clause contained therein, which is as follows: “Provided, that no corporation, firm, association or individual shall be subject to any criminal prosecution by reason of anything truthfully disclosed by the affidavit required by this act, or truthfully disclosed in any testimony elicited in the execution thereof.”
In order that a statute requiring a person to give evidence which might tend to incriminate him may be held valid, the immunity afforded must be broad enough to protect him against future punishment for the offense to which the evidence relates. (Counselman v. Hitchcock, 142 U. S. 547; Lamson v. Boyden, 160 Ill. 613.) The constitutional privilege is not, however, to be so far extended that it “may be put forward for a sentimental reason, or for a purely fanciful protection of the witness against an imaginary danger, and for the real purpose of securing immunity to some third person who is interested in concealing the facts to which he would testify.” (Brown v. Walker, 161 U. S. 591.) The constitutional privilege that a person shall not be required to give evidence or to be a witness against himself is one of great value to the'citizen; but the authorities, both State and national, recognize the rule that when the testimony sought cannot be used as a basis for or in aid of a prosecution which might be followed by fine or imprisonment or involve a penalty or forfeiture, by reason of an immunity statute, the reason of the rule ceases and the privilege cannot be claimed. Immunity statutes must be given a reasonable construction and not a strained and artificial one, and when the court can clearly see that a person is fully protected from the effect of his testimony he should be required to give evidence, even though it may show him to have been guilty of a criminal offense.
The defendant urges three reasons why the immunity afforded by this statute is not complete: (1) The immunity does not cover prosecutions under the Federal law nor under the law of the other States; (2) the immunity can not be conditioned upon the truthfulness of the disclosure; and (3) the immunity is not co-extensive with the constitutional privilege.
It is fundamental that the legislature of this State is powerless to pass an enactment making an act committed in a foreign State a crime punishable in that State, or
the legislature of a foreign State to pass an enactment to make an act committed in this State a crime punishable in this State. It is therefore evident that a violation of the statute above set forth in this State cannot be punished as a criminal offense in a foreign State, and that the immunity afforded by the statute is complete against a prosecution under the law of the other States of the Union. The Anti-trust statute of 1891 has no extraterritorial effect. While its terms may be broad enough to include trusts, pools, combines, etc., formed with parties residing outside of this State, the courts, in construing jt, must necessarily confine it to those matters upon which the General Assembly has power to act, viz., trusts, pools, combinations, etc., formed within the State of Illinois.
In the construction of a statute the courts will exclude from the operation thereof subjects or classes upon which the State legislature has no power to legislate, although comprehended within the general terms of the act, unless the different parts of the statute are so connected that they cannot be separated without destroying the evident intention of the legislature. (State v. Smiley, 69 Pac. Rep. 199; Supervisors v. Stanley, 105 U. S. 305; Commonwealth v. Gagne, 153 Mass. 205.) In State v. Smiley, supra, it is said: “The general doctrine is, that only the invalid parts of a statute are without legal efficacy. This is qualified by the further rule that if the void and valid parts of the statute are so connected with each other in the general scheme of the act that they cannot be separated without violence to the 'evident intent of the legislature, the whole must fail. * * * The instances in which the application of the rule first mentioned most usually occurs are those where separable words, clauses, sentences or sections of the statute are stricken out, as it were, because constitutionally objectionable. However, the rule is not limited to such instances. It applies as well to exclude from the operation of the statute subjects and classes of things lying without the legislative intent, although comprehended within the general terms of the act, as it does to exclude parts of the verbal phraseology.” In Commonwealth v. Gagne, supra, it is said: “A law which is unconstitutional within certain limitations, if in terms it exceeds or fails to notice those limitations, may yet be entirely operative within its legitimate sphere and properly held to have the application which thus confines it. Indeed, where two governments, like those of the United States and the commonwealth, exercise their authority within the same territory and over the same citizens, the legislation of that which, as to certain subjects, is subordinate should be construed with reference to the powers and authority of the superior government, and not be deemed as invading them unless such construction is absolutely demanded.”
If the statute be confined to its legitimate constitutional scope its proper construction only requires the affidavit to state whether or not the corporation upon whose behalf it is made had violated the statute by performing some one or more of the acts therein prohibited within the State of Illinois, and would not include, but would exclude, all acts which would connect it with any trust, pool, combination, etc., formed outside of the State, and which would violate the Anti-trust statute of the United States. The United States, under its power to regulate inter-State commerce, may legislate upon the subject of private contract in respect to such commerce, and has full and complete jurisdiction over trusts, pools, combinations, etc., so far as they relate to such commerce, but it has no jurisdiction over trusts, pools, combinations, etc., which relate to commerce wholly within a State, and it does not acquire auy jurisdiction over that part of a combination or agreement which relates to commerce wholly within a State by reason of the fact that the combination also covers and regulates commerce which is inter-State. While it may control trusts; pools, combinations, etc., so far as they interfere with inter-State commerce, so far as they interfere with commerce wholly within the State such trusts, pools, combinations, etc., are subject alone to the jurisdiction of the State. (Addyston Pipe and Steel Co. v. United States, 175 U. S. 211.) The fact that a corporation organized or doing business in this State may have entered into a trust, pool, combination, etc., in violation of the Anti-trust law of this State does not show or tend to show that it has entered into a combination or agreement in violation of the Anti-trust law of the United States; and this would be true even though the same corporation, in addition to its business carried on wholly in Illinois, was engaged in business outside of the State. In making the affidavit the affiant is only required to take into consideration the acts of the corporation while engaged in business wholly within the State, and if, in connection with that business, it has not been connected with any trust, pool or combination within the State, or otherwise violated the Illinois Anti-trust statute, he can truthfully make the affidavit to that effect, although the corporation at the same time, in its business outside the State, has been connected with trusts, pools, combinations, etc., in violation of the United States Anti-trust statute, that being a matter exclusively within the jurisdiction of the United States and over which the State has no control and to which the statute of this State does not apply. If, on the other hand, the affidavit should show a violation of the Illinois Anti-trust statute, no violation of the United States Anti-trust statute would be disclosed and no evidence be furnished thereby which would incriminate or tend to incriminate the party making the affidavit, or the corporation upon whose behalf it was made, under the United States Anti-trust statute. The offenses created by these statutes are separate and distinct offenses, and the evidence which would support a conviction under one statute would be wholly immaterial and not sustain a conviction under the other. The offenses created by said statute can readily be distinguished from that of counterfeiting, and perhaps other crimes, upon the trial of which the evidence to sustain a conviction would be the same whether the crime was prosecuted in the State or Federal court.
But if it be conceded that there is a bare possibility that the affidavit might contain disclosures which would furnish evidence of a violation of the Anti-trust statute of some other State of the Union or of the United States, we think, within the meaning of the authorities, that such disclosure is not a real and probable danger, and does not fall within the danger which the constitutional privilegie was intended to obviate. The case of Brown v. Walker, supra, is a case in which it was claimed that the immunity clause of the inter-State Commerce law would not afford protection against prosecution for the offense under the laws of one of the States disclosed in the examination, pursuant to the provisions of the Federal statute. Mr. Justice Brown, rendering the opinion of the court, reviewed the case of Regina v. Boyes, 1 B. & S. 311, and quoted with approval extensively from the opinion of Lord Chief Justice Cockburn. He says: “In the latter case it was suggested, in answer to the production by the solicitor general of a pardon of the witness under the great seal, that by statute no such pardon under the great seal was pleadable to an impeachment by the com-' mons in parliament, and it was insisted that this was a sufficient reason for holding that the privilege of the witness still existed, upon the ground that, though protected by the pardon against every other-form of prosecution, the witness might possibly be subjected to parliamentary impeachment. It was also contended in that case, as it is in the one under consideration, ‘that a bare possibility of legal peril was sufficient to entitle a witness to protection. Nay, further, that the witness was the sole judge as to whether his evidence would bring him into the danger of the law, and that the statement of his ^belief to that effect, if not manifestly made mala fide, would be received as conclusive. ’ It was held, however, by Lord Chief Justice Cockburn, that ‘to entitle a party called as a witness, to the privilege of silence, the court must see, from the circumstances' of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled" to answer, ’ although ‘if the fact of the witness being in danger be once made to appear, great latitude should be allowed to him in judging for himself of the effect of any particular question/ ‘Further than this,’ said the chief justice, ‘we are of opinion that the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things,—not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. We think that a merely remote and naked possibility, out of the ordinary course of the law and such as no reasonable man would be affected by, should not be suffered to obstruct the -administration of justice. The object of the law is fo afford to a party called upon to give evidence in a proceeding inter alios, protection against being brought, by means of his own evidence, within the penalties of the law. But it would be to convert a salutary protection into a means of abuse if it were to be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to justify the withholding of evidence essential to the ends of justice/” And after holding the statutes of the United States are the supreme law of the land, and that immunity from prosecution for a crime disclosed by the party under a provision of the national statutes, would operate as immunity from prosecution for any offense against the laws of the State disclosed in the same proceeding, he further says: “But, even granting that there were still a bare possibility that by his disclosure he might be subjected to the criminal laws of some other sovereignty, that, as Chief Justice Cockburn said in Regina v. Boyes, 1 B. & S. 311, in reply to the argument that the witness was not protected by his pardon against an impeachment by the House of Commons, is not a real and probable danger, with reference to the ordinary operations of the law in the ordinary courts, but ‘a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. ’ Such dangers it was never the object of the provision to obviate.”
We conclude, therefore, that the officer making the affidavit, and the corporation in whose behalf the same is made, are fully protected by the statutory immunity from a prosecution by any other State or by the Federal authorities.
We do not understand the words “truthfully disclosed,” contained in the immunity clause of the statute, to be a condition upon which immunity is to be, granted, but, taken in connection with the context, they amount to no more than this: that if, in making the affidavit, in order to state the truth it becomes necessary to disclose a violation of the statute, there shall be no prosecution against the party making the affidavit, or the corporation on whose behalf it is made, by reason of such disclosure. In other words, the statute requires the answer to the letter of inquiry of the Secretary of State to be made under oath, which answer the statute assumes,-when made, will be truthful, and it then declares, if in making such affidavit it is disclosed that the statute has been violated, the person making the affidavit, and the corporation on whose behalf it is made, shall be protected from punishment by reason of the disclosures contained therein.
The words “criminal cases,” used in the State and Federal constitutions, have been construéd by the courts to extend to and include imprisonment, fine, forfeiture and penalty, whether to be recovered in a criminal or civil proceeding, and when an immunity statute is couched in the same language as the constitution, the language of the statute .will receive the same construction as that of the constitution, and be held to grant immunity from imprisonment, fine, forfeiture or penalty. Coffey v. United States, 116 U. S. 426; Boyd v. United States, id. 616; Counselman v. Hitchcock, supra; Brown v. Walker, supra.
It is said that the amendment of 1893 is unconstitutional in this: that it is an attempt upon the part of the legislature to exercise judicial power, and that it singles out corporations as the only class upon which the statute is to act, and exempts individuals and partnerships from the operation thereof. These objections, in our opinion, are without force. The statute in apt terms provides the affidavit shall be filed in reply to the letter of inquiry of the Secretary of State or the penalty shall be incurred. The offense is the failure to file the affidavit in reply to the letter of inquiry. If the legislature may require the affidavit to be filed, as we think it may, we can see no valid reason why it may not provide that a failure in that regard shall subject the offending party to a penalty to be adjudged against it by the courts, without it being said that the legislature has exceeded its jurisdiction by exercising judicial power; and as a corporation exists or does business in this State only by virtue of a charter granted to it by the State or by permission of the State, we see no valid reason why it may not require a corporation existing or doing business in this State to file the affidavit provided by the statute, even though it is provided that individuals, when acting alone or in partnership with others, are exempted from so doing. The object of the statute of 1891, as amended, is two-fold: to prohibit trusts, pools and combines for the purpose of limiting production and fixing the prices of commodities within the State, and to have supervision and control over corporations created or doing business in this State for the purpose of determining whether they are members of trusts, pools and combines. The placing of corporations in a class by themselves and requiring them to file the anti-trust affidavit, leaving individuals and partnerships simply liable to the penalties provided for by the act, is not an illegal or arbitrary classification, any more than is the requirement that State banking institutions shall file reports with the Auditor of State or insurance companies with the insurance department of the State.
It is also contended that the amendment of 1893 is unconstitutional, on the t ground that it exempts from its operation corporations organized under the building, loan and homestead association laws of this State. The corporations organized under such laws differ essentially from corporations organized under the general statute for pecuniary profit, and we do not deem the provision found in the statute exempting these organizations from complying with the provisions of the statute special or class legislation, or as falling within the principle announced in Connolly v. Union Sewer Pipe Co. 184 U. S. 540. The placing of building, loan and homestead associations in a class by themselves, for the purpose of taxation or otherwise, is a natural, and not an arbitrary, classification. (Bunn v. People, 45 Ill. 397; Kilgour v. Drainage Comrs. 111 id. 342; Hawthorn v. People, 109 id. 302; People v. Hoffman, 116 id. 587; DeGraff v. Went, 164 id. 485; Lasher v. People, 183 id. 226; In re St. Louis Loan and Investment Co. 194 id. 609.) In the Lasher case it is said (p. 231): “The legislature have power to form classes for the purpose of police regulation, if they do not arbitrarily discriminate between persons in substantially the same situation.” In Consolidated Coal Co. v. Illinois, 185 U. S. 203, it was held that the Illinois statute of 1897, whereby coal mines where not more than five men are employed at any one time are exempt from the operation of the act of May 28, 1879, providing for inspection, was not an arbitrary and unreasonable classification, an'd that the amendment was a constitutional enactment.
It is urged that the act of 1891 is rendered unconstitutional by the amendment of 1897, and it is also said that the act of 1891 was repealed by an act entitled “An act to define trusts and conspiracies against trade, declaring contracts in violation of the provisions of this act void, and making certain acts in violation thereof misdemeanors, and prescribing the punishment therefor and matters connected therewith,” approved June 20, 1893. (Laws of 1893, p. 182.) The questions here raised are somewhat akin to each other, and will be considered together.
The act of 1893 did not expressly repeal the act of 1891, and from a comparison of the provisions of the acts we are of the opinion that there is no such repugnancy existing between the two that the latter would effect a repeal, by implication, of the former. Furthermore, the legislature evidently did not intend to repeal the act of 1891 by the act of 1893, as upon the day upon which the latter act was passed the former was amended, and the act of 1891 was again amended in 1897. In the case of Connolly v. Union Sewer Pipe Co. supra, the Supreme Court of the United States had before it for consideration the act of 1893, and it was there held that the entire act was unconstitutional and void, as being in conflict with the provisions of the fourteenth amendment to the constitution of the United States, in this: that it improperly discriminated in favor of agricultural products or live stock in the hands of the producer or raiser. If the act of 1893 is void as being in conflict with the Federal constitution, as it, in view of the decision in Connolly v. Union Sewer Pipe Co. supra, must be held to be, it seems too plain for argument that it could not have worked the repeal of the act of 1891. Raymond v. Hartford Fire Ins. Co. 196 Ill. 329.
The amendment of 1897 to the act of 1891 was in the form of a proviso to section 1 of that act and reads as follows: “Provided, however, that in the mining, manufacture or production of articles of merchandise, the cost of which is mainly made up of wages, it shall not be unlawful for persons, firms or corporations doing business in this State to enter into joint arrangements of any sort, the principal object or effect of which is to maintain or increase wages.” Under the decision in the Connolly case it is clear that this amendment is unconstitutional and void, as being an unlawful discrimination in favor of the persons sought to be exempted by the amendment from the operation of the act of 1891, as amended by the act of 1893. If the amendment of 1897 sought to be incorporated info said statute is void, it necessarily would make no change in the original act, and that act would stand, as amended by the act of 1893, as the legislative will. The discrimination contained in the act of 1893, and that sought to be incorporated into the act of 1891, as amended in 1893, by the amendment of 1897, are of the same character, and both are obnoxious to the fourteenth amendment to the constitution of the United States. The obnoxious provision in the act of 1893 carried down with it the entire act, as the court held the obnoxious provision was so intimately connected with the subject matter of the act that it could not be separated from the body of the act without destroying the entire act. , Such consequence, however, does not follow the failure of the amendment of 1897. The act of 1891, as amended by the act of 1893, was a valid statute. That act, as amended, and the act of 1897, are separate and distinct acts, passed by different legislatures, and the subsequent unconstitutional act, which is without force, can have no effect to overthrow and render void the legal and constitutional expression of the legislature as manifested by the act of 1891, as amended in 1893.
It is suggested the constitutional method of passing amendments in this State, which requires “the section amended shall be inserted at length in the new act,” requires a holding to the effect that the section sought to be amended is necessarily repealed, even though the subject matter sought tobe incorporated into the section fails by reason of the fact that the amendment is unconstitutional and void. We cannot agree with this view. The amendment of 1897 does not, in terms, repeal section 1 of the statute of 1891. If any part of the act of 1891 is repealed it must be a repeal by implication and because the amendment is in conflict with the original act or a part thereof. But the amendment is unconstitutional and void. It therefore repealed no part of the act upon which it was fruitlessly sought to be engrafted* as an amendment. (Ex parte Davis, 21 Fed. Rep. 396.) Repeals by implication are not favored, (People v. Nelson, 156 Ill. 364,) and in Childs v. Shower, 18 Iowa, 261, it is said (p. 272): “If the repealing clause was positive and unconditional and under circumstances which indicated a design to repeal the old law at all events, it would doubtless be operative, though contained in a statute which was unconstitutional. So, on the other hand, it seems clear that an unconstitutional enactment would not repeal, by mere implication, a former law.”
We therefore conclude, both the act of 1893 and the amendment of 1897 being unconstitutional and void, they do not repeal, by implication, the act of 1891, or any part thereof, as amended in 1893.
That the anti-trust legislation of this State should be upheld if it can be construed in harmony with the fundamental law, both State and national, must be conceded by all. As said by the learned justice who wrote the opinion in Brown v. Walker, supra: “Instead of seeking for excuses for holding acts of the legislative power to be void by reason of ’their conflict with the constitution or with certain supposed fundamental principles of civil liberty, the effort should be to reconcile them, if possible, and not to hold the law invalid, unless, as was observed by Mr. Chief Justice Marshall in Fletcher v. Peck, 10 U. S. (6 Cranch, 87,) 128, (3, 162, 175,) ‘the opposition between the constitution and the law be such that the-judge feels a clear and strong conviction of their incompatibility with each other.’”
The question of the constitutionality of the original act of 1891 is not a new question in this court, but is one which was passed upon in the case of Ford v. Chicago Milk Shippers' Ass. 155 Ill. 166, and the decision in that case has been referred to with approval in the case of Harding v. American Glucose Co. 182 Ill. 551, and the act was there held to be constitutional.
After having given the questions raised on this record the fullest consideration we have been able to give them within the time at our. disposal, we are of the opinion that the amendment of 1893 to the act of 1891 is valid, and that the act of 1891, as so amended, is free from constitutional objections, and should be sustained.
The judgment of the circuit court of Cook county will therefore be reversed and the cause remanded to that court for a new trial.
Reversed and remanded.