SHAPIRO v. UNITED STATES.
No. 49.
Supreme Court of the United States
Argued October 23, 1947. - Decided June 21, 1948.
Solicitor General Perlman argued the cause for the United States. With him on the brief were Assistant Attorney General Quinn, Philip Elman, Robert S. Erdahl and Irving S. Shapiro.
MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.
Petitioner was tried on charges of having made tie-in sales in violation of regulations under the Emergency Price Control Act.1 A plea in bar, claiming immunity from prosecution based on § 202 (g)2 of the Act, was
The petitioner, a wholesaler of fruit and produce, on September 29, 1944, was served with a subpoena duces tecum and ad testificandum, issued by the Price Administrator under authority of the Emergency Price Control Act. The subpoena directed petitioner to appear before designated enforcement attorneys of the Office of Price Administration and to produce “all duplicate sales invoices, sales books, ledgers, inventory records, contracts and records relating to the sale of all commodities from September 1, 1944 to September 28, 1944.” In compliance with the subpoena, petitioner appeared and, after being sworn, was requested to turn over the subpoenaed records. Petitioner‘s counsel inquired whether petitioner was being granted immunity “as to any and all matters for information obtained as a result of the investigation and examination of these records.” The presiding official stated that the “witness is entitled to whatever immunity which flows as a matter of law from the production of these books and records which are required to be kept
The plea in bar alleged that the name of the purchaser in the transactions involved in the information appeared in the subpoenaed sales invoices and other similar documents. And it was alleged that the Office of Price Administration had used the name and other unspecified leads obtained from these documents to search out evidence of the violations, which had occurred in the preceding year.
The Circuit Court of Appeals ruled that the records which petitioner was compelled to produce were records required to be kept by a valid regulation under the Price Control Act; that thereby they became public documents, as to which no constitutional privilege against self-incrimination attaches; that accordingly the immunity of § 202 (g) did not extend to the production of these records and the plea in bar was properly overruled by the trial court. 159 F. 2d 890.
It should be observed at the outset that the decision in the instant case turns on the construction of a com-
The legislative history of § 202 casts even stronger light on the meaning of the words used in that section. On July 30, 1941, the President of the United States, in a message to Congress, requested price-control legislation conferring effective authority to curb evasion and bootlegging.6 Two days later the Price Control Bill was introduced in the House by Representative Steagall, and referred to the Committee on Banking and Currency.
As introduced, and as reported out of the Committee on November 7, 1941, the bill included broad investigatory, record-keeping, licensing, and other enforcement powers to be exercised by the Administrator.7 While it
It is significant to note that the Senate Committee on Banking and Currency began its consideration of the
“because no investigatory power can be effective without the right to insist upon the maintenance of records. By the simple device of failing to keep records of pertinent transactions, or by destroying or falsifying such records, a person may violate the act with impunity and little fear of detection. Especially is this true in the case of price-control legislation, which operates on many diverse industries and commodities, each industry having its own trade practices and methods of operation.
“The House bill also deprives the Administrator of the power to require reports and to make inspections and to copy documents. By this deprivation the Administrator‘s supervision over the operation of the act is rendered most difficult. He has no expeditious way of checking on compliance. He is left without ready power to discover violations. “It should not be forgotten that the statute to be administered is an emergency statute. To put teeth into the Price Control Act, it is imperative that the Administrator‘s investigatory powers be strong, clear, and well adapted to the objective. . . .”13
Emphasis was placed on the restoration of licensing provisions, which the House had deleted from the Price Control Bill as originally drafted. The General Counsel for the OPA contended that licensing was the backbone of enforcement of price schedules and regulations.14 The
With this background,19 Congress restored licensing powers to the Administrator in the Price Control Bill as
It is difficult to believe that Congress, whose attention was invited by the proponents of the Price Control Act to the vital importance of the licensing, record-keeping and inspection provisions in aiding effective enforcement of the Lever Act, could possibly have intended § 202 (g) to proffer a “gratuity to crime” by granting immunity to custodians of non-privileged records. Nor is it easy to conceive that Congress could have intended private privilege to attach to records whose keeping it authorized the Administrator to require on the express supposition that it was thereby inserting “teeth” into the Price Control Act since the Administrator, by the use of such records, could readily discover violations, check on compliance, and prevent violations from being committed “with impunity.”
In conformance with these views, the bill as passed by Congress empowered the Administrator to require the making and keeping of records by all persons subject to the statute, and to compel, by legal process, oral testimony of witnesses and the production of documents deemed necessary in the administration and enforcement of the statute and regulations. It also included the immunity proviso, subsection (g) of § 202, as to which no special attention seems to have been paid in the debates, although it was undoubtedly included, as it had been in other statutes, as a “usual administrative provision,”20 intended to fulfill the purpose customarily fulfilled by such a provision.
Moreover, there is a presumption that Congress, in re-enacting the immunity provision of the 1893 Act, was aware of the settled judicial construction of the statutory immunity. In adopting the language used in the earlier act, Congress “must be considered to have adopted also the construction given by this Court to such language, and made it a part of the enactment.”21 That judicial construction is made up of the doctrines enunciated by this Court in spelling out the non-privileged status of records validly required by law to be kept, in Wilson v. United States, 221 U. S. 361 (1911), and the inapplicability of immunity provisions to non-privileged documents, in Heike v. United States, 227 U. S. 131 (1913).
In the former case, Wilson, the president of a corporation, was required by subpoena to produce the corporate books in his custody before a grand jury. He appeared before the grand jury but refused to deliver up the records on the ground that their contents would tend to incriminate him, and claimed privilege under the Fifth Amendment. On review in this Court of the judgment committing him for contempt, Wilson based his defense in part on the theory that he would have been protected in his constitutional privilege against self-incrimination had he been sworn as a witness, and that the government‘s failure to permit him to be sworn could not deprive him of such protection.22 This argument was disposed
“the physical custody of incriminating documents does not of itself protect the custodian against their compulsory production. The question still remains with respect to the nature of the documents and the capacity in which they are held. It may yet appear that they are of a character which subjects them to the scrutiny demanded and that the custodian has voluntarily assumed a duty which overrides his claim of privilege. . . . The principle applies not only to public documents in public offices, but also to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established. There the privilege, which exists as to private papers, cannot be maintained.”23
As illustrations of documents meeting this “required records” test, the Court cited with approval state supreme court decisions that business records kept under requirement of law by private individuals in unincorporated enterprises were “‘public documents, which the defendant was required to keep, not for his private uses, but for the benefit of the public, and for public
In the Heike case, this Court, per Holmes, J., laid down a standard for the construction of statutory immunity provisos which clearly requires affirmance of the decision of the circuit court here: “. . . the obvious purpose of the statute is to make evidence available and compulsory that otherwise could not be got. We see no reason for supposing that the act offered a gratuity to crime. It should be construed, so far as its words fairly allow the construction, as coterminous with what otherwise would have been the privilege of the person concerned.”26 In view of the clear rationale in Wilson, taken together with the ruling in Heike as to how statutory immunity provisos should be construed, the conclusion seems inevitable that Congress must have intended the immunity proviso in the Price Control Act to be coterminous with what would otherwise have been the constitutional privilege of petitioner in the case at bar.
The traditional rule that re-enactment of a statute creates a presumption of legislative adoption of previous judicial construction may properly be applied here, since the Court in Heike regarded the 1903 immunity statute there construed as identical, in policy and in the scope of immunity furnished, with the Compulsory Testimony Act of 1893, which has been re-enacted by incorporation into the Price Control Act.
In addition, scrutiny of the precise wording of § 202 (g) of the latter statute indicates that the draftsmen of that section went to some pains to ensure that the immunity provided for would be construed by the courts as being so limited. The construction adopted in the Heike decision was rendered somewhat difficult because neither the Compulsory Testimony Act of 1893 nor the immunity proviso in the 1903 Act made any explicit reference to the constitutional privilege against self-incrimination, with whose scope the Court nonetheless held the immunity to be coterminous. Section 202 (g), on the other hand, follows a pattern set by the Securities Act of 1933 and expressly refers to that privilege, thus apparently seeking to make it doubly certain that the courts would construe the immunity there granted as no broader than the privilege:
“No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of Feb. 11, 1893 . . . shall apply with respect to any individual who specifically claims such privilege.”
A comparison of the precise wording of § 202 (g) with the wording of immunity provisions contained in earlier
The precise holding in Monia was that a witness before an investigatory body need not claim his privilege as a prerequisite to earning immunity under a pre-1933 statute which offered immunity without any reference to the need for making such a claim. The majority considered the Heike decision inapplicable to Monia because the relevant terms of the immunity proviso involved in the latter case were so plain and so sharply in contrast with the wording of the enactments after 1933, which (including the Price Control Act) expressly require the assertion of the claim, that Congress could not have intended the pre-1933 statute to require a witness to assert his claim. And it was emphasized that, to construe congressional intention otherwise in those circumstances, might well result in entrapment of witnesses as to testimony concededly privileged. We do not perceive such distinguishing factors in the case at bar, and accordingly consider the Heike rationale fully applicable here.
Petitioner does not deny that the actual existence of a genuine privilege against self-incrimination is an absolute prerequisite for the attainment of immunity under
The implausibility of any such interpretation of congressional intent is highlighted by the unquestioned fact that Congress provided for price regulations enforcible against unincorporated entrepreneurs as well as corporate industry. It is also unquestionable that Congress, to ensure that violations of the statute should not go unpunished, required records to be kept of all relevant buying and selling transactions by all individual and corporate business subject to the statute. If these aspects of con-
If the contention advanced against our interpretation be valid, the Court must have erred in its construction of the immunity proviso in the Heike case. For the
Actually, neither the interpretation as applied in the Heike decision nor as expounded here renders meaningless any of the words in the immunity provision. In each case, the immunity proviso is set forth in conjunction with record-keeping requirements. And in each case, where the immunity provided concerns documents whose production might otherwise be excused on the ground of
As a final answer, an understanding of the 1893 immunity provision, based on its full historical context, should suffice to explain the limited function contemplated by Congress in incorporating that provision into the 1942 statute. The 1893 provision was enacted merely to provide an immunity sufficiently broad to be an ade-
The suggestion has been advanced that the scope of the immunity intended by Congress should be ascertained, not by reference to the judicial and legislative history considered above, but by reference to the principle expounded in Federal Trade Comm‘n v. American Tobacco Co., 264 U. S. 298, 307 (1924), of construing a broad grant of statutory authority so as to avoid attributing to Congress “an intent to defy the Fourth Amendment or even to come so near to doing so as to raise a serious question of constitutional law.”
It is interesting to note that Congress, in enacting the Price Control Bill, apparently did intend to rely upon the principle of American Tobacco in circumstances similar to those in which that principle was originally applied: namely, to insure that the power of inspection or examination would not conflict with the prohibition against unreasonable searches and seizures contained in the
It was the abuse of the subpoena power to obtain irrelevant data in the course of a “fishing expedition” with which the Court was concerned in that case. It is clear that if the Administrator sought to obtain data irrelevant to the effective administration of the statute and if his right of access was challenged on the ground that the evidence sought was “plainly incompetent or irrelevant to any lawful purpose”38 of the Administrator, that objection could sustain a refusal by the district court to issue a subpoena or other writ to compel inspection. But there is no indication in the legislative history that Congress intended the American Tobacco principle of construction to govern the immunity proviso of
Even if the evidence of congressional intent contained in the legislative history were less clear-cut and persuasive, and constitutional doubts more serious than they appear to us, we would still be unconvinced as to the applicability of the American Tobacco standard to the construction of the immunity proviso in relation to documentary evidence which is clearly and undeniably relevant, and the recording and keeping of which the Administrator has properly required in advance. For, in construing statutory immunities in such circumstances, we must heed the equally well-settled doctrine of this Court to read a statute, assuming that it is susceptible of either of two opposed interpretations, in the manner which effectuates rather than frustrates the major purpose of the legislative draftsmen. The canon of avoidance of constitutional doubts must, like the “plain meaning” rule, give way where its application would produce a futile result, or an unreasonable result “plainly at variance with the policy of the legislation as a whole.”40 In the present case, not merely does the construction
There remains for consideration only the question as to whether serious doubts of constitutionality are raised if the
It may be assumed at the outset that there are limits which the Government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency and may be used in prosecuting statutory violations committed by the record-keeper himself. But no serious misgiving that those bounds have been overstepped would appear to be evoked when there is a sufficient relation between the activity sought to be regulated and the public concern so that the Government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection by the Administrator. It is not questioned here that Congress has constitutional authority to prescribe commodity prices as a war emergency measure, and that the licensing and record-keeping requirements of the
In the view that we have taken of the case, we find it unnecessary to consider the additional contention by the Government that, in any event, no immunity attaches to the production of the books by the petitioner because the
For the foregoing reasons, the judgment of the Circuit Court of Appeals is
Affirmed.
MR. JUSTICE FRANKFURTER, dissenting.
The Court this day decides that when Congress prescribes for a limited Governmental purpose, enforceable by appropriate sanctions, the form in which some records are to be kept, not by corporations but by private individuals, in what in everyday language is a private and not a Governmental business, Congress thereby takes such records out of the protection of the Constitution against self-incrimination and search and seizure. Decision of constitutional issues is at times unavoidable. But in this case the Court so decides when it is not necessary. The Court makes a drastic break with the past in disregard of the settled principle of constitutional adjudication not to pass on a constitutional issue—and here a grave one involving basic civil liberties—if a construction that does no violence to the English language permits its avoidance. This statute clearly permits it.1 Instead, the Court goes on the assumption that an immunity statute must be equated with the privilege, although only recently the Court attributed to Congress a gratuitous grant of immunity where concededly the Constitution did not require it, under circumstances far less persuasive than the statutory language and the policy underlying it. See United States v. Monia, 317 U. S. 424.
In reaching out for a constitutional adjudication, especially one of such moment, when a statutory solution avoiding it lay ready at hand, the Court has disregarded its constantly professed principle for the proper approach toward congressional legislation. “When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U. S. 22, 62, quoted by Mr. Justice Brandeis with supporting citations in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 348, n. 8. And see, generally, for duty to avoid constitutional adjudication, Rescue Army v. Municipal Court, 331 U. S. 549, 568 et seq.
Departure from a basic canon of constitutional adjudication is singularly uncalled for in a case such as this, where the statute not only permits a construction avoiding constitutional considerations but on fair reading requires it.
In conferring powers of investigation upon the Administrator, Congress designed to secure the promptest dis-
It is a poor answer to say that if the statute were eventually found to confer immunity only to the extent required for supplying an equivalent for the constitutional privilege, all records would turn out to be unprivileged or would furnish immunity, and in either case refute any excuse for withholding them. Businessmen are not guided by such abstractions. Obedience is not freely given to uncertain laws when they involve such sensitive matters as opening the books of business. And so, businessmen would have had a strong incentive to hold back their records, forcing the Administrator to compel production by judicial process. Apart from the use of opportunities for obstructive tactics that can hardly be circumvented when new legislation is tested, delays inevitable to litigation would dam up the flow of needed information. Congress sought to produce information, not litigation. See United States v. Monia, supra, at p. 428.
In the Monia case the Court considered that the statute, “if interpreted as the Government now desires, may well be a trap for the witness.” Id. at 430. We need not speculate here as to potential entrapment. The record discloses that the petitioner asked, through his attorney, whether he was “being granted immunity as to any and all matters for information obtained as a result of the investigation and examination of these records.” On be-
There is nothing to indicate that in 1942 Congress legislated with a view to litigating the scope of the limitation of the
“No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the
Compulsory Testimony Act of February 11, 1893 (U. S. C., 1934 edition, title 49, sec. 46 ), shall apply with respect to any individual who specifically claims such privilege.”56 Stat. 23 , 30,50 U. S. C. App. § 922 (g) .
The text must be put into its context, not merely because one provision of a statute should normally be read in relation to its fellows, but particularly so here because Congress explicitly linked subsection (g) of
diction to issue an order requiring such person to appear and give testimony or to appear and produce documents, or both; and any failure to obey such order of the court may be punished by such court as a contempt thereof. The provisions of this subsection shall also apply to any person referred to in subsection (b), and shall be in addition to the provisions of section 4 (a).
“(f) Witnesses subpenaed under this section shall be paid the same fees and mileage as are paid witnesses in the district courts of the United States.
“(g) No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the
“(h) The Administrator shall not publish or disclose any information obtained under this Act that such Administrator deems confidential or with reference to which a request for confidential treatment is made by the person furnishing such information, unless he determines that the withholding thereof is contrary to the interest of the national defense and security.
“(i) Any person subpenaed under this section shall have the right to make a record of his testimony and to be represented by counsel.”
The Court supports this devitalization with the “short answer” that the immunity provided does cover compliance with any of these requirements as to which a person would have been excused from compliance because of his constitutional privilege. The short reply is that, bearing in mind the Court‘s conclusions as to the scope of the constitutional privilege, only the fourth requirement appears to be thus covered. I do not wish to lay too much stress on the Court‘s singular interpretation of the plural “requirements.” Plainly, the Court construes § 202 (g) as according immunity only to oral testimony under oath and to the production of any documents which the Administrator did not have the foresight to require to be kept.4
The Court thus construes the words “complying with any requirements under this section” to read “appearing and testifying or producing documents other than those required to be kept pursuant to this section.” Construc-
Both logic and authority, apart from due regard for our limited function, demonstrate the wisdom of respecting the text. The reach of the immunity given by § 202 (g) is spelled out in the incorporated terms of the
The language yields no support for the Government‘s sophisticated reading adopted by the Court. Nor is there anything in the legislative history to transmute the clear import of § 202 into esoteric significance. So far as it bears upon our problem, the legislative history of the Act merely shows that § 202 in its entirety was included for the purpose of “obtaining information.”6 Nothing in that history throws any light upon the scope of the immunity afforded by subsection (g).7 What is there in this silence of Congress that speaks so loudly to the Court? What are the “inescapable implications of the legislative history” that compelled its extraordinary reading of this statute? Surely, the fact that the Administrator‘s authority to require the keeping of records and the making of reports was stricken from the bill on its original passage through the House but was eventually
But the Court reads into § 202 (g) the meaning that “they” put upon the record-keeping provisions that Congress thus reinserted into the bill. “They,” the “general Counsel for the OPA,” appeared and testified orally at the Senate Hearings9 and, in urging restoration of the licensing (§ 205 (f)) and record-keeping provisions, secured permission to file various briefs and documents with the Committee.10 While there is nothing in the General Counsel‘s oral testimony that sheds light upon our prob-
To attribute to Congress familiarity with, let alone acceptance of, a construction solely by reason of the fact that our research reveals its presence among the 60,000-word memoranda which the Chairman of the Senate Committee permitted the General Counsel of the O. P. A. to file, is surely to defy the actualities of the legislative process. Is there the slenderest ground for assuming that members of the Committee read counsel‘s submission now relied upon by the Court? There is not a reference to the contentions of the O. P. A., wholly apart from that brief, in any report of a committee of either House or in any utterance on the floor of either House.13 The fact
We agree with the Government that Congress gave the Administrator broad powers for obtaining information as an aid to the administration and enforcement14 of the Act, and that “The immunity provision of Section 202 (g) was inserted to insure a full exercise of these powers unhampered by the assertion of the privilege against self-incrimination.” Certainly. But how does it follow that Congress thereby intended sub silentio to effectuate this broad purpose by confining the immunity accorded within the undefined controversial scope of the
Plainly, it would have sufficed to dispose of the present controversy by holding that Congress granted immunity by § 202 (g) to persons who produced their own records, as were the records in this case, and not in their possession as custodians of others, even though required to be kept by § 202. To adapt the language of Mr. Justice Holmes, words have been strained by the Court more than they
And so we come to the Court‘s facile treatment of the grave constitutional question brought into issue by its disposition of the statutory question. In the interest of clarity it is appropriate to note that the basic constitutional question concerns the scope of the
The Court hardly finds a problem in disposing of an issue far-reaching in its implications, involving as they do a drastic change in the relations between the individual and the Government as hitherto conceived. The Court treats the problem as though it were almost self-evident that when records are required to be kept for some needs of Government, or to be kept in a particular form, they are legally considered governmental records and may be demanded as instruments of self-crimination.
Ready-made catch-phrases may conceal but do not solve serious constitutional problems. “Too broadly gen-
If records merely because required to be kept by law ipso facto become public records, we are indeed living in glass houses. Virtually every major public law enactment—to say nothing of State and local legislation—has record-keeping provisions. In addition to record-keeping requirements, is the network of provisions for filing reports. Exhaustive efforts would be needed to track down all the statutory authority, let alone the administrative regulations, for record-keeping and reporting requirements. Unquestionably they are enormous in volume.
The Congress began its history with such legislation. Chapter I of the
Every Congress since 1789 has added record-keeping and reporting requirements. Indeed, it was the plethora
“Counting both the administrative and the nonadministrative reports and returns, the Board‘s inquiry revealed that some 49,000,000 of the total during the year were collected in accordance with statutory provisions specifically authorizing or directing the collection of reports of the types called for. Approximately 55,000,000 returns were collected by agencies in connection with their performance of functions which were specifically authorized by statutes, although the statutes did not specify the reports. In such cases the information sought was obviously necessary in carrying out the required functions. Nearly 27,000,000 returns were collected by
Federal agencies on report forms for each of which the legal authority was too general or too indefinite to permit its clear definition. The remaining 5,000,000 returns were made under a variety of types of legal authorities including authorizations implied in appropriations made specifically to support the collection of the reports. “Somewhat less than half of the returns made to Federal agencies on all forms . . . were mandatory by law, in the sense that a penalty is prescribed in case of failure of the respondent to file a required report. Some of these mandatory returns are very elaborate, and as a consequence over 60 percent of the total number of answers on report forms, other than applications, were in accordance with mandatory requirements.” (H. Doc. No. 27, supra, at 11-12.)
I do not intend by the above exposition to cast any doubt upon the constitutionality of the record-keeping or reporting provisions of the
The underlying assumption of the Court‘s opinion is that all records which Congress in the exercise of its constitutional powers may require individuals to keep in the conduct of their affairs, because those affairs also have aspects of public interest, become “public” records in the sense that they fall outside the constitutional protection of the
If the records in controversy here are in fact public, in the sense of publicly owned, or governmental, records, their non-privileged status follows. See Davis v. United States, 328 U. S. 582, 594, 602 (dissenting opinion). No one has a private right to keep for his own use the contents of such records. But the notion that whenever Congress requires an individual to keep in a particular form his own books dealing with his own affairs his records cease to be his when he is accused of crime, is indeed startling.
A public record is a public record. If the documents in controversy are “public records” and as such non-privileged in a prosecution under the Price Control Act, why are they not similarly public and non-privileged in any sort of legal action? There is nothing in either the Act or the Court‘s construction of it to qualify their “public” nature. Is there any maintainable reason why the
Moreover, the Government should be able to enter a man‘s home to examine or seize such public records, with
Indeed, if these records are public, I can see no reason why the public should not have the same right that the Government has to peruse, if not to use, them. For, public records are “of a public character, kept for public purposes, and so immediately before the eyes of the community that inaccuracies, if they should exist, could hardly escape exposure.” Evanston v. Gunn, 99 U. S. 660, 666. It would seem to follow, therefore, that these public records of persons engaged in what to the common understanding is deemed private enterprise should be generally available for examination and not barred by the plea that the enterprise would thereby cease to be private.
Congress was guilty, perhaps, of no more than curious inconsistency when it provided in § 202 (h) of the Act for the confidential treatment of these “public” records.16 But the seeming inconsistency generally applies to
The fact of the matter, then, is that records required to be kept by law are not necessarily public in any except a word-playing sense. To determine whether such records are truly public records, i. e., are denuded of their essentially private significances, we have to take into account their custody, their subject matter, and the use sought to be made of them.
It is the part of wisdom, particularly for judges, not to be victimized by words. Records may be public records regardless of whether “a statute requires them to be kept,” if “they are kept in the discharge of a public duty” either by a public officer or by persons acting under his direction. Evanston v. Gunn, supra. Chapter I of the first statute passed by Congress, supra, is an example of an act requiring a public record to be kept.
Records do not become public records, however, merely because they are required to be kept by law. Private records under such circumstances continue to be private records. Chapter V of the Acts of the First Congress, supra, is an example of such a private record required to be kept by law.
Is there, then, any foundation for the Court‘s assumption that all records required to be kept by law are public and not privileged? Reliance is placed on language in Wilson v. United States, 221 U. S. 361. The holding in that case has no real bearing on our problem. Wilson, the president of a corporation, in answer to a subpoena
“The only question was whether as against the corporation the books were lawfully required in the administration of justice. When the appellant became president of the corporation and as such held and used its books for the transaction of its business committed to his charge, he was at all times subject to its direction, and the books continuously remained under its control. If another took his place his custody would yield. He could assert no personal right to retain the corporate books against any demand of government which the corporation was bound to recognize.
“We have not overlooked the early English decisions to which our attention has been called . . . but these cannot be deemed controlling. The corporate duty, and the relation of the appellant as the officer of the corporation to its discharge, are to be determined by our laws. Nothing more is demanded than that the appellant should perform the obligations pertaining to his custody and should produce the books which he holds in his official capacity in accordance with the requirements of the subpoena. None of his personal papers are subject to inspection under the writ and his action, in refusing to permit the
examination of the corporate books demanded, fully warranted his commitment for contempt.” (221 U. S. at 385-86.)
The Wilson case was correctly decided. The Court‘s holding boiled down to the proposition that “what‘s not yours is not yours.” It gives no sanction for the bold proposition that Congress can legislate private papers in the hands of their owner, and not in the hands of a custodian, out of the protection afforded by the
The conclusion reached today that all records required to be kept by law are public records cannot lean on the Wilson opinion. This is the language relied upon by the Court:
“The principle [that a custodian has no privilege as to the documents in his custody] applies not only to public documents in public offices, but also to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established. There the privilege, which exists as to private papers, cannot be maintained.” (221 U. S. at 380.)
But Mr. Justice Hughes, the writer of the Wilson opinion, went on to note that “There are abundant illustrations in the decisions” of this principle that a custodian has no privilege as to the documents in his custody just as no one has a privilege as to public or official records because they are not his private papers. He resorted
The illustrations utilized by Mr. Justice Hughes to meet this challenge raised by the dissent stand for the propositions that (a) a custodian has no privilege, and (b) public documents and records are non-privileged, but not at all on any notion that private records required to be kept by law are “public” records. Before analyzing the eleven precedents or illustrations thus employed, it is worthy of note that the illustrations were derived from the Government‘s brief. It is significant that that brief, by Solicitor General Frederick W. Lehmann, well-known for his learning, contained no reference to the “required records” doctrine. On the contrary the Government cited these cases to support its argument that: “The immunity granted by the Constitution is purely personal.”17
These are the “illustrations in the decisions“:
(1) Bradshaw v. Murphy, 7 C. & P. 612, where “it was held that a vestry clerk who was called as a witness could not on the ground that it might incriminate himself object to the production of the vestry books kept under the statute, 58 George III, chapter 69, § 2.” (221 U. S. at 380.)
(2) State v. Farnum, 73 S. C. 165, where it was held that the dispenser of the State Dispensary had to disclose to a legislative committee the official books of that State institution.
Comment.—Under South Carolina law the dispenser was an officer of the State; the books were true public records; he was their custodian.
(3) State v. Donovan, 10 N. D. 203, where it was held that a register of sales of intoxicating liquor kept by a druggist pursuant to a statute providing that such record “shall be open for the inspection of the public at all reasonable times during business hours, and any person so desiring may take memoranda or copies thereof” was a public record.
Comment.—The State court construed the statute to make the druggist a public officer and, as such, the custodian of the register for the State. The court quoted authority to the effect that the register was “the property of the state, and not of the citizen, and is in no sense a private memorandum.” 10 N. D. at 209. Are we to infer from the Court‘s opinion in this case that the books and records petitioner customarily kept were not his property but that of the United States Government, and that they “shall be open for the inspection of the public at all reasonable times during business hours, and any person so desiring may take memoranda or copies thereof“? Ibid. and cf. Evanston v. Gunn, supra.
(4) State v. Davis, 108 Mo. 666, where it was held that a druggist had no privilege as to the prescriptions he filled for sales of intoxicating liquor.
(5) State v. Davis, 68 W. Va. 142 (prescription-keeping case virtually identical with State v. Davis, 108 Mo. 666).
(6) People v. Coombs, 158 N. Y. 532, where it was held that a coroner had no privilege as to official inquest records, required to be filed with the county clerk, over his contention that they were private records because they were false and had been found in his own office.
Comment.—“The papers were in a public office, in the custody of a clerk who was paid by the city. On their face they were public records and intended to be used as such.” 158 N. Y. at 539.
(7) L. & N. R. Co. v. Commonwealth, 51 S. W. (Ky.) 167, where it was held that a railroad corporation had no privilege as to a tariff sheet.
Comment.—The tariff sheet was “required by law to be publicly posted at the station, and was in fact so posted.” 51 S. W. at 167. Petitioner is not a railroad corporation and his records were not “publicly posted.”
(8) State v. Smith, 74 Iowa 580, where it was held that a pharmacist had no privilege as to the monthly reports of liquor sales that he had made to the county auditor pursuant to a statutory reporting requirement.
Comment.—The reports in the auditor‘s office were “public records of the office, which are open to the inspection of all, and may be used in evidence in all cases between all parties, when competent, to establish any fact in issue for judicial determination.” 74 Iowa at 583-84. Petitioner‘s records were in his possession and were not open for public inspection.
(9) State v. Cummins, 76 Iowa 133 (same as State v. Smith, supra).
(10) People v. Henwood, 123 Mich. 317 (liquor sales reporting requirement held valid).
(11) Langdon v. People, 133 Ill. 382, held that seizure pursuant to search warrant of official State documents unlawfully in appellant‘s possession constituted reasonable search—“They were not private papers.” 133 Ill. at 398.
In summary of the authorities cited as illustrations of the principle recognized and applied by the Court in the Wilson case, then, it should be obvious that they neither stand for the proposition that the fact that private records are required to be kept by statute makes them public records by operation of law, nor did Mr. Justice Hughes misconstrue them in reaching the decision in the Wilson case.
Were there any doubt as to the point of the illustrations in the Wilson case, surely we could safely permit that doubt to be resolved by the Wilson opinion itself. After reviewing the illustrative cases, Mr. Justice Hughes observed:
“The fundamental ground of decision in this class of cases, is that where, by virtue of their character and the rules of law applicable to them, the books and papers are held subject to examination by the demanding authority, the custodian has no privilege to refuse production although their contents tend to criminate him. In assuming their custody he has accepted the incident obligation to permit inspection.” (221 U. S. 381–82.)
Evidently the dictum in the Wilson case and the authorities therein cited need to be bolstered for the use to which they are put in this case. We are told that “Other state supreme court decisions, subsequent to the
(1) Paladini v. Superior Court, 178 Cal. 369, where it was held that the statutory procedure whereby the State Market Director could compel the production of the sales records of licensed fish dealers was valid.
Comment.—The court did not hold that the records were “non-privileged,” but disposed of the contention that the statute violated the constitutional privilege against self-incrimination on the ground that “The proceeding before the state market director is not criminal in its nature, and the order compelling the petitioners to produce their books before the state market director was not in violation of the constitutional provision which prohibits a court or officer from requiring a defendant in a criminal case to furnish evidence against himself.” 178 Cal. at 373. The court did dispose of the contention that the statute violated the
(2) St. Louis v. Baskovitz, 273 Mo. 543, where a municipal ordinance requiring junk dealers to keep books of registry recording their purchases and providing that the books be open for inspection and examination by the police or any citizen was upheld against the contention that it violated the State constitutional provision against unreasonable searches and seizures for private purposes.
(3) State v. Legora, 162 Tenn. 122, where a statute requiring junk dealers to keep a record of their purchases was upheld.
Comment.—A record which “shall at all times be open to the inspection of . . . any person who may desire to see the same,” 162 Tenn. at 124, is, of course, a “public” record. Evanston v. Gunn, supra; cf. St. Louis v. Baskovitz, supra.
(4) State v. Stein, 215 Minn. 308, where a statute requiring licensed dealers in raw furs to keep records of their sales and purchases was upheld.
Comment.—The records here were public records for the same reason that the records involved in the Paladini case were public records—“the state is the owner, in trust for the people, of all wild animals.” 215 Minn. at 311.
(5) Financial Aid Corporation v. Wallace, 216 Ind. 114, where a statute requiring licensed small loan concerns to keep records and providing for their inspection by the State Department of Financial Institutions was upheld.
Comment.—The court had no occasion to, and did not, go into the question as to whether the records were either “public” or “non-privileged.”
It appears to me, therefore, that the authorities give no support to the broad proposition that because records are required to be kept by law they are public records and, hence, non-privileged. Private records do not thus
Different considerations control where the business of an enterprise is, as it were, the public‘s. Clearly the records of a business licensed to sell state-owned property are public records. Cf., e. g., Paladini v. Superior Court, supra; State v. Stein, supra. And the records of a public utility, apart from the considerations relevant to corporate enterprise, may similarly be treated as public records. Cf., e. g., L. & N. R. Co. v. Commonwealth, supra; Financial Aid Corporation v. Wallace, supra. This has been extended to the records of “occupations which are malum in se, or so closely allied thereto, as to endanger the public health, morals or safety.” St. Louis v. Baskovitz, supra, at p. 554; cf., e. g., State v. Legora, supra; State v. Donovan, supra; State v. Smith, supra.
Here the subject matter of petitioner‘s business was not such as to render it public. Surely, there is nothing inherently dangerous, immoral, or unhealthy about the
“But the corporate form of business activity, with its chartered privileges, raises a distinction when the authority of government demands the examination of books.” (221 U. S. at 382.)
And the Court quoted at length from Hale v. Henkel, 201 U. S. 43, 74-75 (1906):
“’ . . . we are of the opinion that there is a clear distinction in this particular between an individual and a corporation, and that the latter has no right to refuse to submit its books and papers for an examination at the suit of the State. The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him.
“‘Upon the other hand, the corporation is a creature of the State. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises. . . .‘” (221 U. S. at 383.)
The phrase “required to be kept by law,” then, is not a magic phrase by which the legislature opens the door to inroads upon the
The Court in the Boyd case was fully cognizant of the sense and significance of the phrase “books required by law to be kept for their inspection.” Id. at 623-24. Surely the result of that decision, if not the opinion itself, speaks loudly against the claim that merely by virtue of a record-keeping provision the constitutional privilege against self-incrimination becomes inoperative. The document in controversy in the Boyd case was historically, and as a matter of fact, much more of a “required record” than the books and records the petitioner here “cus-
In disregarding the spirit of that decision, the Court‘s opinion disregards the clarion call of the Boyd case: obsta principiis. For, while it is easy enough to see this as a petty case and while some may not consider the rule of law today announced to be fraught with unexplored significance for the great problem of reconciling individual freedom with governmental strength, the Boyd opinion admonishes against being so lulled. “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance.” Id. at 635.
Violators should be detected, tried, convicted, and punished—but not at the cost of needlessly bringing into question constitutional rights and privileges. While law enforcement officers may find their duties more arduous and crime detection more difficult as society becomes more complicated, the constitutional safeguards of the
And so I conclude that the Court has misconstrued the
Even if there were authority for the temerarious pronouncement in today‘s opinion, I would insist that such authority was ill-founded and ought not to be followed. There is no such authority. The Court‘s opinion can gain no strength beyond itself. The persuasiveness of its opinion is not enhanced by the endeavor of the majority of the Court, so needlessly reaching out for a constitutional issue, to rest its ominous inroads upon the
MR. JUSTICE JACKSON, with whom MR. JUSTICE MURPHY agrees, dissenting.
The protection against compulsory self-incrimination, guaranteed by the
The practice approved today obviously narrows the protections of the
MR. JUSTICE RUTLEDGE, dissenting.
With reservations to be noted, I agree with the views expressed by MR. JUSTICE JACKSON, and with MR. JUSTICE FRANKFURTER‘S conclusions concerning the effect of the immunity provision,
That wording compels testimony and the production of evidence, documentary or otherwise, regardless of any claim of constitutional immunity, whether valid or not.3 But to avoid the constitutional prohibition and, it would seem clearly, also any delay in securing the information or evidence required, the Act promises immunity “for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence . . . in obedience to” the subpoena.4
The statute thus consists of a command and a promise. In explicit terms the promise is made coextensive with the command. It expressly precludes prosecution, forfeiture or penalty “for or on account of any transaction, matter or thing” concerning which evidence is produced in compliance with the subpoena.5 Compelling testimony and giving immunity “for or on account of any transaction, matter or thing, concerning which he may testify” are very different from compelling it and promising that, when given, the person complying “shall have only the immunity given by the
It may be, however, notwithstanding the breadth of the promissory terms, that the statutory immunity was not intended to be so broad as to cover situations where the claim of constitutional right precluded is only frivolous or insubstantial or not put forward in good faith.6 And if, for such a reason, the literal breadth of the wording may be somewhat cut down, restricting the statute‘s immunity by excluding those situations would neither restrict the effect of the statutory words to that of the Amendment itself nor give them the misleading connotation of the Court‘s construction. Such a construction would not be departing widely from either the statute‘s terms or their obvious purpose to give immunity broader than the Amendment‘s, and would be well within the bounds of statutory interpretation. On the other hand, the Court‘s reduction of the statutory wording to equivalence in effect with the constitutional immunity, nearly if not quite makes that wording redundant or meaningless; in any event, it goes so far in rewriting the statutory language as to amount to invasion of the legislative function.
Whether one or the other of the two broader views of the statute‘s effect is accepted, therefore, it is neither necessary nor, I think, reasonable or consistent with the statutory wording and object or with this Court‘s function as strictly a judicial body to go so far in reconstructing what Congress has done, as I think results from reducing the statutory immunity to equivalence with the constitutional one.
In this view I am relieved of the necessity of reaching the constitutional issue resulting from the Court‘s construction, and I express no opinion upon it except to say that I have substantial doubt of the validity of the Court‘s conclusion and indicate some of the reasons for this. I have none that Congress itself may require the keeping and production of specified records, with appropriate limitations, in connection with business matters it is entitled to and does regulate. That is true not only of corporate records, Wilson v. United States, 221 U. S. 361, but also of individual business records under appropriate specification and limitations, as the numerous instances cited in MR. JUSTICE FRANKFURTER‘S opinion illustrate.
But I seriously doubt that, consistently with the
The authority here conferred upon the Administrator by the
The authorization therefore is one which raises serious question whether, by reason of failure to make more definite specification of the records to be kept and produced, the legislation and regulations involved here do not exceed the prohibition of the
UNITED STATES v. HOFFMAN.
No. 97. Argued October 23, 1947.—Decided June 21, 1948.
Solicitor General Perlman argued the cause for the United States. With him on the brief were Assistant Attorney General Quinn, Philip Elman, Robert S. Erdahl and Irving S. Shapiro.
Notes
“(a) The Administrator is authorized to make such studies and investigations, to conduct such hearings, and to obtain such information as he deems necessary or proper to assist him in prescribing any regulation or order under this Act, or in the administration and enforcement of this Act and regulations, orders, and price schedules thereunder.
“(b) The Administrator is further authorized, by regulation or order, to require any person who is engaged in the business of dealing with any commodity, or who rents or offers for rent or acts as broker or agent for the rental of any housing accommodations, to furnish any such information under oath or affirmation or otherwise, to make and keep records and other documents, and to make reports, and he may require any such person to permit the inspection and copying of records and other documents, the inspection of inventories, and the inspection of defense-area housing accommodations. The Administrator may administer oaths and affirmations and may, whenever necessary, by subpena require any such person to appear and testify or to appear and produce documents, or both, at any designated place.
“(c) For the purpose of obtaining any information under subsection (a), the Administrator may by subpena require any other person to appear and testify or to appear and produce documents, or both, at any designated place.
“(d) The production of a person‘s documents at any place other than his place of business shall not be required under this section in any case in which, prior to the return date specified in the subpena issued with respect thereto, such person either has furnished the Administrator with a copy of such documents (certified by such person under oath to be a true and correct copy), or has entered into a stipulation with the Administrator as to the information contained in such documents.
“(e) In case of contumacy by, or refusal to obey a subpena served upon, any person referred to in subsection (c), the district court for any district in which such person is found or resides or transacts business, upon application by the Administrator, shall have juris-
Neither Heike v. United States, 227 U. S. 131, nor Wilson v. United States, 221 U. S. 361, principally relied upon by the Court, approached such a ruling.The Wilson case dealt only with corporate records, and the claim of a corporate officer having their custody to constitutional immunity against being required to produce them. None were required by law to be kept, in the sense that any federal law required that they be kept and produced for regulatory purposes. The only ruling was that a corporate officer has no personal immunity against producing corporate records, which are of course not his own, and that the corporation has no immunity of its own under the
The Heike decision is equally not apropos. The exact ruling was that the evidence, from the production of which the claimed right of immunity, constitutional as well as statutory, arose, “did not concern any matter of the present charge. Not only was the general subject of the former investigation wholly different, but the specific things testified to had no connection with the facts now in proof much closer than that they all were dealings of the same sugar company.” 227 U. S. 131, 143. The actual ruling therefore, apart from the fact that a corporate officer claimed immunity in large part for producing corporate records, see id., 142-143, was that the petitioner had not brought himself within the scope of the statutory authorization, namely, because the “transaction, matter or thing” concerning which he had testified had no substantial connection with the matters involved in his prosecution. The decision is authority for nothing more than that the immunity at the most does not attach when the constitutional claim precluded, but said to bring the statute into play, is insubstantial. The dictum stressed in the Court‘s opinion that the statute “should be construed, so far as its words fairly allow the construction, as coterminous with” (P. 142) the constitutional immunity, not only was unnecessary, but as the clause itself emphasized explicitly negatives exact equivalence. (Emphasis added.)
“‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
“‘The question is,’ said Humpty Dumpty, ‘which is to be master—that‘s all.‘”
The express limitation of the immunity to testimony or evidence produced in obedience to the subpoena excludes immunity for volunteered testimony or evidence, i. e., such as is given in excess of the subpoena‘s requirement. But the terms of the statute purport to exclude no other.“The Administrator and the Board of Administrative Review or any member or commissioner thereof may administer oaths and affirmations, may require by subpena or otherwise the attendance and testimony of witnesses and the production of documents at any designated place. No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the
As passed by the House, then, the bill would have authorized the Administrator to require the production of the records here in issue, but there would have been no question of their being “public” records, and petitioner would clearly have been accorded the immunity herein claimed. The House Managers yielded as to the record-keeping requirements and the reinstatement of the entire § 202, but there is no mention in their report of the provisions of subsection (g), let alone any indication that there was any difference intended in the scope of the immunity accorded by the two bills.
On January 26, 1942, Representative Gifford stated on the floor of the House:
“But this licensing business, ‘Compulsory loyalty will crack sooner than the genuine kind.’ During the last World War it was loyalty by cooperation. They had licensing, yes, on food products and on fuel, but little of anything else. If the licensee was punished, it was only a slap on the wrist. If he would contribute to the Red Cross he was forgiven. I have a compiled brief on the licensing methods that I could go into at length. An hour would be necessary to properly discuss it and to recite the experiences of ours and other nations. Canada now has it. Let me read to you their statement of policy. These restrictions are not designed to curtail business operations in any way. But by placing every person who in any way handles the commodities named in the order under license, the Board will have the machinery with which to make speedy checks on available stocks and to police more effectively any price-fixing order which may be instituted.” (88 Cong. Rec. 672.)
To trace knowledge of the O. P. A. brief to a congressional reader by assuming from this statement that Representative Gifford, who opposed the adoption of these provisions of the bill, was such a reader, and from that to attribute to Congress knowledge of what was in an exhibit to a committee hearing, is so attenuated a process of inferential reasoning as to discredit the whole paraphernalia of legislative history. That the Congress itself does not care to be charged with knowledge of all the extraneous matter for which either House has granted leave to print in the Record is apparent from the rules of the Joint Committee on Printing providing that “the same shall be published in the Appendix” and “in 6 1/2-point type.” See Cong. Rec., Dec. 11, 1947, p. A5039. There is, moreover, little basis for concluding that the Gifford “compiled brief” was the O. P. A. brief—different briefs frequently quote from the same authority. On the contrary, the O. P. A. brief hardly presented the argument that “Compulsory loyalty will crack sooner than the genuine kind,” nor did it contain material demonstrating either the narrow scope or the weaknesses of World War I licensing.
Compare the dictum in United States v. Mulligan, 268 F. 893 (N. D. N. Y. 1920), that records required to be kept by an unincorporated businessman under the
“Section 4 (c) affords protection to those persons required to disclose information to the Administrator by making it unlawful for any officer or employee of the Government, or for any adviser or consultant to the Administrator in his official capacity, to disclose or to use for his personal benefit, any information obtained under the bill. Further provision for confidential treatment of such information is found in section 202 (b) [changed in Conference to
This is substantially the same sort of confidential treatment provided for by the
In statutes such as these, where Congress validly distinguishes required records from private papers, with respect to the availability
“A restrictive interpretation should not be given a statute merely because Congress has chosen to depart from custom or because giving effect to the express language employed by Congress might require a court to face a constitutional question.” United States v. Sullivan, 332 U. S. 689, 693 (1948).
In Boyd v. United States, 116 U. S. 616 (1886), the Court held unconstitutional, as repugnant to the
In rejecting the Government‘s contention, the opinion of the majority of the Court proceeded mainly upon a complex interpretation of the
Holding this view of the
“The State requires the books to be kept, but it does not require the officer to commit the crime. If in the course of committing the crime he makes entries, the criminality of the entries exists by his own choice and election, not by compulsion of law. The State announced its requirement to keep the books long before there was any crime; so that the entry was made by reason of a command or compulsion which was directed to the class of entries in general, and not to this specific act. The duty or compulsion to disclose the books existed generically, and prior to the specific act; hence the compulsion is not directed to the criminal act, but is independent of it, and cannot be attributed to it. . . . The same reasoning applies to records required by law to be kept by a citizen not being a public official, e. g. a druggist‘s report of liquor sales, or a pawnbroker‘s record of pledges. The only difference here is that the duty arises not from the person‘s general official status, but from the specific statute limited to a particular class of acts. The duty, or compulsion, is directed as before, to the generic class of acts, not to the criminal act, and is anterior to and independent of the crime; the crime being due to the party‘s own election, made subsequent to the origin of the duty.” (Italics as in the original.)