194 Mo. 124 | Mo. | 1906
Original proceeding on information in the nature of quo warranto. The Waters-Pierce Oil Company is' a domestic corporation. The Standard Oil Company of Indiana is a corporation of that State. The Republic Oil Company is a corporation of the State of New York. The two latter companies a.re domiciled for business purposes in Missouri by virtue of licenses issued to them under our statute, and upon compliance therewith. Each and every of these corporations was created for the purpose of engaging in the business of refining petroleum and buying and selling the products thereof and all are engaged in the. business of selling naptha, benzine, gasoline, kerosene, lubricating oil and other products of petroleum in Missouri; not only so, but the said Standard Oil Company has established, owns and is conducting a refinery in this State and is refining petroleum thereat.
On the 25th of March, 1905, the Attorney-General commenced an original proceeding in this court in the form of an information in the nature of quo warrmito, filed ex officio, against all of said corporations, thereby causing this court, to be informed that said corporations had created, entered into and become members of a
The information proceeds with due, legal precision and particularity to inform this court of the scope and tenor of the trust scheme and of the specific methods claimed to have been employed therein and thereby to rivet upon the people of this State, contrary to public policy and in the very teeth of express law, an alleged odious monopoly. For present purposes the inventory of details pleaded need not be set forth in this opinion. Suffice it to say that the substance and pith of the agreed plan and method, as gathered from the formal averments of the information, are, speaking figuratively and by way of comparison, that, as all Gaul was di
The object of this information is to oust the said corporations and each of them from their franchises, rights, authority, license and certificate to do business under the laws of this State and to forfeit the same.
On the filing of said information, straightway a rule was passed and handed down to show cause and to which said rule respondent corporations severally made answer and return. Respondents, the Standard Oil Company and the Republic Oil Company, made return by the same counsel and in common form (mwtatis, mutandis) admitting their incorporation, charter, purposes and license and authority to do business in the State of Missouri as pleaded in the information. The Standard Oil Company also admitted that it had established and is now conducting a refinery in Jackson county, Missouri, for the purpose of refining petroleum and averred that it had spent many thousand dollars in the construction thereof. The said respondents further admit that they were doing business in the State of Missouri as venders of the products of petroleum as set forth in the information, hut they generally, as well as specifically at length, deny, seriatim, the 'averments of the information having the sting of charging any illegal agreement, confederation and combination and the alleged plan and method of effectuating the same, etc. The Water s-Pierce Oil Company admitted its incorporation and business as a dealer in oil, as averred in the information, hut denied all averments thereof charging the formation of a trust or any violation of law.
“Now on this day, it appearing to the court from the pleadings in the above-entitled cause that issues of fact are joined therein, therefore, upon motion and request of Herbert S. Hadley, Attorney-General, that a special commissioner be appointed by the court to take the testimony upon the issues joined in said cause, it is ordered by the court that Robert A. Anthony, Esq., of Fredericktown, Missouri, be and he is hereby appointed special commissioner to take the testimony upon the issues joined in said cause, with full power and authority to issue subpoenas, compelling the attendance of witnesses, the production of papers, books and other documents, to issue attachments therefor and to hear and determine all objections to testimony and to admit or exclude the same in the same manner and to the same extent as this court might in the trial of the case before the court, and to report the testimony, with his findings of fact thereon, to this court with convenient speed, provided that such report shall be filed by the first day of the October Term, 1905, unless further continued for good cause; exceptions to the findings of fact so made by said special commissioner to be filed by either party so desiring within ten days after the filing of the commissioner’s report and findings.”
Thereafter, the said Robert A. Anthony qualified as such commissioner and took upon himself the burden of doing and performing the matters and things nominated in his said warrant and chart of authority, and, prior to the report of testimony taken, rulings made and conclusion of fact arrived at by him, the Attorney-General filed with the clerk of this court the following application:
“Now comes Herbert S. Hadley, Attorney-General of the State of Missouri, who prosecutes this case for and in behalf of the State, and informs the court that C. L. Nichols, of 26 Broadway, New York City, is the
“That the firm of Schofield, Schurmer & Teagle was, prior to July, 1901, a copartnership', engaged in the business of refining petroleum and buying and selling the products thereof in various parts of the United States, and particularly in the State of Missouri, and that for long years prior to June, 1901, said firm of Schofield, Schurmer & Teagle were active and actual competitors in the State of Missouri of the Standard Oil Company of Indiana and the Waters-Pierce Oil Company, respondents herein; that during the month of June, 1901, the property and business of said firm of Schofield, Schurmer & Teagle was purchased by the Standard Oil Company of New Jersey, a corporation organized and existing under the laws of the State of New Jersey, and that said corporation owned at that time the stock of the Standard Oil Company of Indiana, respondent herein, and owned and controlled a majority of the stock of the Waters-Pierce Oil Company, a respondent herein; that after the purchase of the property and business of said firm of Schofield, Schurmer & Teagle by the Standard Oil Company of New Jersey, as aforesaid, there was organized in the State of New York a certain corporation, known as the Republic Oil Company, and that the stockholders who appeared in the articles of associa
“Informant further states that said O. L. Nichols and W. T. McKee are competent witnesses to testify to the facts herein set forth, which testimony informant is informed and believes, and therefore states to the court, that such witness can and will give, if they testify as witnesses in this cause.
“Wherefore, and by reason of the competent, material and important evidence possessed by said C. L. Nichols and W. T. McKee, informant states that he desires the appearance and attendance of said C. L. Nichols and W. T. McKee, and to take the testimony of said Nichols and McKee, and to introduce in evidence the said stock book of the Republic Oil Company in the court room of the St. Louis Court of Appeals, before the Hon. Robert A. Anthony, commissioner, appointed by the court to take the testimony in said cause, in the city of St. Louis, on the 18th day of October, 1905, between the hours of ten o’clock in the forenoon and five o ’clock in the afternoon of said day, and if not completed thereon, to be continued from day to day until the same is completed.
“Informant states he knows of no witness or witnesses in the State of Missouri by whom he could prove the facts to which said witnesses could testify as fully as the same could be proven by the testimony of said witnesses, and informant believes that the testimony which said witnesses could and would give, as herein set forth, is true.
“Informant further states that he is ready and willing and hereby offers to deposit in court an amount of money sufficient to pay the necessary traveling expenses of said witnesses from their place of residence to St. Louis and return for the purpose of giving said testimony.
“Wherefore, said Herbert S. Hadley, Attorney-General, as aforesaid, requests and prays the Honorable James D. Fox, one of the judges of the Supreme Court of Missouri, to issue a notice in writing, directed
Thereafter, the following notifying order was made in the premises by Fox, J., in vacation :
“To Messrs. Frank Hagerman and A. D. Eddy, attorneys of record for the Republic Oil Company,' and the Standard Oil Company of Indiana, and Messrs. Charles Nagel, John D. Johnson and H. S. Priest, attorneys for the Waters-Pierce Oil Company:
“You, and each of you, are hereby notified that Herbert S. Hadley, Attorney-General of the State of Missouri, informant in this cause, has filed with me, one of the judges of the Supreme Court of Missouri, in vacation, a petition in writing, setting forth the names of certain persons whose testimony he desires to take in the above-entitled cause, as well as certain books and documents which he desires to introduce in evidence, together with the time and place therefor fixed at the court room of the St. Louis Court ofAppeals in the city of St. Louis, on the 18th day of October, 1905, between the hours of ten o ’clock in the forenoon and five o ’clock in the afternoon, and if not completed thereon, to be continued from day to day until the same is completed. That in said petition the Attorney-General states that he desires the testimony of C. L. Nichols, at 26 Broad
“Now, therefore, in accordance with the provisions of section 8983, Revised Statutes 1899, these presents are to command you, the said Prank Hagerman and A. D. Eddy, and you are hereby required to produce- the said C. L. Nichols and W. T. McKee and have them at the place and on the time hereinbefore set out, then and there to answer such competent, legal and material questions as may be put to them touching their knowledge of the issues in the above-entitled cause and you are further required and commanded to have the said "W. T. McKee produce and present in evidence at said time and place mentioned the stock book of the said Republic Oil Company. A copy of the petition, filed by informant, is hereto attached, of which you will take due notice.
‘ ‘ Given under my hand this 28th day of September, A. D., 1905.
“Jambs D. Pox,
“Judge of the Supreme Court of Missouri.”
Thereafter, at this term, the following motion was filed in this court by Messrs. Hagerman and Eddy, directed to said order and notice:
“Now comes Prank Hagerman and A. D. Eddy, who are counsel of record for the respondents, the Republic Oil Company and Standard Oil Company, of Indiana, in the above-entitled cause, and move the court
“First: Said order was improperly and improvidently granted.
“Second: Because they, and each of them, bear no relation to either of said respondents other than that of attorneys and client herein, and such relation does not impose upon them the duty of having the witnesses named, or the book specified in said order and notice before the commissioner at the time named or at any other time. Alfred D. Eddy is an attorney at law residing in Chicago, Illinois, and having no business in this State other, than as an attorney in this cause, while Frank Hagerman is an attorney at Kansas City, Missouri, having no connection with the said respondents except as attorney and client in this case.
“Third: Because said attorneys of record of the said Standard Oil Company of Indiana and of the Republic Oil Company have no power, authority or jurisdiction over the said C. L. Nichols and W. T. McKee, or either of them, to' compel the attendance of either of said witnesses named at the place named in said notice and order, or elsewhere, to testify before said commissioner.
“Fourth: Because the document named in said order and notice is not and has never been in the possession or under the control of either said Eddy or Hagerman, or are they, or either of them, required by said notice to attend before the commissioner as witnesses. This proceeding is based and founded upon article III, chapter 143, of the Revised Statutes' of Missouri of 1899, which does not contemplate an order to produce
“Fifth: Because it was and is beyond the power of this court to require of these attorneys the duties of serving process for the purpose of procuring the attendance of Informant’s witnesses in the cause, thus taking the time, labor and expenditure of the attorneys to procure witnesses on behalf of the State, without any compensation being made therefor, and compelling the attorneys to perform duties antagonistic to the interests of their client, and the production of evidence against their client and in favor of their adversary.
“Sixth. Because the statute under which said application is made does not apply to proceedings by information in the nature of quo warranto , but applies solely to actions commenced by the Attorney-General or some prosecuting attorney by the direction of the Attorney-General, in equity, in the circuit court of this State, and does not confer power, authority or jurisdiction upon the court to order the production of witnesses, or books and papers before the commissioner.
‘ ‘ Seventh: Because said statute under which said application is made is in contravention and violation of sections 11 and 23 of article 2 of the Constitution of Missouri.
‘ ‘ Eighth: Because the said statute is in contravention and violation of section 53, article 4, of the Constitution of Missouri.
“Ninth. Because said statute is in contravention and violation of the fourteenth amendment to the Constitution of the United States, in that it condemns without due process of law, and in that it denies to the defendant the equal protection of the law, and discriminates between resident and non-resident persons and
“Tenth. Because the said statute is an attempt to secure the evidence of witnesses from without this State, by constructive service, and without providing compensation to said witnesses for their time and expenses, and thus deprives them of their property without just compensation, and also deprives the respondent and its attorneys of any compensation for the service and expense of procuring the attendance of such witnesses, books and papers.
“Eleventh. Because said statute is an unlawful attempt to extend the process to be issued thereunder beyond the territorial limits of this State.
“Twelfth. Because said statute is in contravention and violation of section 25, article 2, of the Constitution of Missouri, in that it inflicts cruel and_ unusual punishment by depriving the respondent of its constitutional right to be heard in its defense of informant’s action, for the default, omission or contempt of another over whom said respondent has no power or control to compel attendance.
“Thirteenth. Because by the laws of the State of New York, under which the respondent, the Republic Oil Company, is organized and incorporated, it is required to keep its stock books in the State of New York, and has no power or authority to bring the same into the State of Missouri, and cannot do so without violating the laws of the State of its creation.
‘ ‘ Fourteenth. Because the order was made upon an ex parte petition of the Attorney-'G-eneral without any notice to any attorney or any respondent in this cause. ’ ’
Which said motion was sworn to severally by said attorneys.
Supplementing said motion, another in the same form was filed by Messrs. Johnson, Nagel & Kirby, and Priest, attorneys for Waters-Pierce Oil Company.
The contentions bodied forth in these motions were
I. Broadly speaking, the motions strike at the power of this court to lay upon the shoulders of counsel the duties and burdens shadowed forth in that order and to thereby credit them with-the result of obedience, on one hand, or charge them with the result of disobedience, on the other. It is true it will be seen that a subsidiary or minor assault is made upon the order upon behalf of respondents, but, nevertheless, the maj- or note, the very gist of the pleading, is directed to an insistence personal to counsel and, inasmuch as this is so, we may be permitted to defer to them by adopting their theory that the large question presented is as stated.
Should the order be vacated? We think not, and this for the following reasons:
(1) It being always permissible to look to the principles of general law for the governing reasons of a given statute, it will prove neither amiss, nor uninstructive, before coming to a close view of the particular statute involved and presently to be considered, to recall certain hornbook propositions, viz.: the relation of attorney and client is not commonly, if ever, regulated in its distinguishing characteristics and earmarks
Reference might be made to other living cognate enactments for similar provisions to illustrate the point in hand. Such has always been our legislative policy. Take, for example, an illustration from our abandoned statutes, so pertinent as to be on all-fours. When a bill of discovery was allowable in accordance with the usages of chancery practice, a litigant desiring a discovery might present a petition to the court or judge in vacation, setting forth the matters upon which his claim to the discovery was founded, the facts sought to be discovered and such interrogatories in relation thereto as he shall think necessary to exhibit in order to attain a full discovery. Thereupon the court or judge in vacation might grant an order requiring the party from whom the discovery was sought to answer the interrog
Again: the rules of this court, covering matters of gravity and solicitude to litigants, are constructed on the theory that notice in a given instance may be given to an attorney of record and thereby bind his client and be made to answer all the practical ends of .justice.
It is in the light of the foregoing established legal principles and pregnant illustrations of grounded legislative policy that we must approach the consideration of section 8983, the same being a part of our anti-trust statutes and being the section under which the application for the order assailed was made and upon which it is based.
(2) Coming to the section in question, it provides that when the Attorney-General has commenced proceedings, such as heretofore indicated, under the laws against the formation and maintenance of pools, trusts of any kinds, monopolies in commodities, or combinations or organizations in restraint of trade, etc., and he desires to take the testimony of any officer, director or employee of any corporation proceeded against, and the individual or individuals whose testimony is desired are without the jurisdiction of the courts of this State, or reside without the State of Missouri, then he shall file in the court where the proceeding is instituted in term time or in vacation, or with any person duly authorized to take the testimony in such case, a statement in writing setting forth the name or names of persons or individuals whose testimony he desires to take, etc. Thereupon the court, or one of the judges thereof, etc., shall issue immediately a notice in writing directed to the attorney or attorneys of record in said cause notifying said attorneys of record that the testimony of the person or persons named in the application is desired,
If we may not be allowed to adopt the quaint conceit, once indulged in, that the idea of monopoly may have originated in Joseph’s corn and land dealings in Egypt (Gen. chap. 41; Ibid. 47, q. v.), or the no less playful conceit of a certain ecclesiastical scholar to the general effect that illegal trusts were hinted at in Rev. 13:16-17 (q. v.), yet we feel at least on solid ground on the proposition that statutes leveled against monopolies are buttressed upon the wisdom of the common law, and this court, constrained and enlightened by events of current history, is not required and does not deem itself invited to approach the interpretation of such statutes with a hostile or sour predisposition to drive a coach and six through them, hut, on the other hand, while sedulously protecting the rights and liberties of the individual from insidious approaches under whatever artful guise, we should at the same time not lose sight of the rights of the community and should endeav-’ or to advance the beneficent purpose underlying such laws (State ex inf. v. Armour Packing Company, 173 Mo. 356), where it can be done without doing violence to constitutional provisions; and in our opinion no constitutional provision is impinged upon by the law providing for such notice nor by the notice itself, so far as it relates to the means employed in procuring the attendance of witnesses.
In arriving at this conclusion we are somewhat influenced by several other propositions. For example, while for certain purposes a corporation is deemed a
It logically results from this recognized doctrine that a State may withhold or regulate and grant license to do business under legislative restrictions, not inimical to the Federal prerogative relating to- interstate commerce or other high Federal governmental function. It is but taking one step further in the evolution of the argument to hold, as we do, that when a corporation, having no right to come into a State, other than that of its own creation, ' for business purposes, except by virtue of its license and the expressed legislative will of the State so invaded, does come into such sister State under a license, as in this case, a contract to obey existing laws pertaining to the granting of that license and the right to hold under that license is implied. In this view the law must be read into the license, and in this view it is not g'oing too far to hold that when the Republic Oil Company of New York was granted and accepted a license to do business in Missouri, it agreed and contracted with this State that notice to appear and testify in any suit affecting that license or the right to do business thereunder, served upon its attorney of record in that case, should be deemed and taken as due notice to the corporation. This is well within the reasoning of Daggs v. Ins. Co., 136 Mo. l. c. 398-9, and other cases that might be cited.
Nor does it'seem laying an unfair burden upon such corporation to require it to produce its specified officers and agents at a reasonable time and suitable place within this State to give their testimony in such
The immediate question now up for consideration seeks only the right of the State to lay such duty upon the corporation and the duty of the corporation to respond to such order. In this condition of things the constitutionality of section 8984 is bitterly assailed. The section provides that if such officer or agent, etc., do not appear to testify and do not produce whatever books and documents be ordered produced by the court, or by the officer authorized to take such evidence, then it shall be the duty of the court upon the motion of the Attorney-General to strike out the answer, motion, reply, demurrer or other pleadings, then or thereafter filed in said action or proceedings by said corporations whose officer or agents, etc., is in default and proceed to render judgment by default against said corporation. But in the view we take of this matter the constitutionality of section 8984 is prematurely raised. No concrete controversy is presented on that section for our consid
The matter of the reasonableness and constitutionality of section 8983 and those immediately following, was before us in State ex inf. v. Continental Tobacco Co., 177 Mo. 1, and while this court did not pass upon such constitutionality in that case, yet, arguendo, such constitutionality was conceded and the whole question rode off on the definiteness of the application and the order and their showing of materiality in the testimony and the competency of the witnesses. [Pp. 42-3.] Comment, too, was made upon the fact that the expenses of the witnesses were not tendered or provided for in that case. In this case the Attorney-General has offered to deposit in court such expenses. In this case, too, the materiality of the evidence is set forth with a wealth of precision and detail. Nor have we any doubt upon the competency of the witnesses to testify under the showing made in the information and in the application and order.
Howbeit, if it should happen, when such witness
In putting the matter to one side it will not be amiss to say, however, that at first blush it would appear that our Legislature had attempted to provide an immunity for such witnesses in order to coerce their testimony; for having provided in a prior section, 8972, as follows: “Provided, that no statement made by any person in any affidavit made under provisions of sections 8973 and 8974 of this article shall be competent as evidence against such person in any criminal prosecutions brought under this section,” the legislative mind again recurred to the matter in section 8974, 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 article, or truthfully disclosed in any. testimony elicited in the execution thereof.”
In this connection it may also be well to notice State ex rel. Attorney-General v. Simmons Hardware Co., 109 Mo. 118, which is cited and somewhat relied
The strong aversion held by courts to statutes which directly or by implication seem to contemplate self-incrimination has been to a .degree lessened by immunity statutes passed in many States of the Union and by the Federal Congress, and such immunity statutes are liberally construed to advance the remedy. For example, the remote possibility that a prosecution might arise in a Federal jurisdiction which would not be within the letter of the immunity provision in a State statute or which might not be within the power of the State to grant, has been held not to render such statute inoperative. [Jack v. Kansas, 26 Sup. Ct. Rep. 73.] See, also, in this connection the reasoning of Burgess, J., in City of St. Joseph v. Levin, 128 Mo. l. c. 593, a prosecution under the ordinances of St. Joseph for refusing to submit for the inspection of a police officer the book required to be kept by Levin as a pawn-broker, and which reasoning tends somewhat to asimilar conclusion.
. (3) There remains to consider the materiality of the evidence sought in the books required to be produced. These books were the stock books of the Republic Oil Company, and the power to compel the production of books under the statute against pools and trust combinations is that found in our Code of Civil Procedure, sections 737 et seq., and the anti-trust statute itself.
It could not be successfully contended under these sections that if the books required were not material to the controversy the order to produce would be allowed to stand. Assuming that the books in question are a history of the registration and ownership of stock in the Republic Oil Company, the question is, is such ownership material? We think it is.
In the first place, our anti-trust statutes denounce combinations of the sort here being considered as a “conspiracy to defraud.” [Secs. 8965 and 8966.] Now, in investigating fraud, it is elementary that courts tolerate a wide latitude and a minute search; for fraud, originating in oblique cunning, is often deeply laid away and may be got at alone by the keenest scrutiny,
It may be admitted that under some circumstances corporations with no community of interest as holders of stock in each other, or even where the stock was not in the hands of a holding company as trustee, might be guilty of a violation of our anti-trust law. It might further be admitted that a trust or combination might be proved by the overt acts of the agents of respondent corporations sufficiently distinctive and significant and of such long continuance as would tread back and tend to establish the obnoxious pact or trust agreement.
In cases where doubt exists proof of motive may fill an office in the administration of law. So that, without at this time intimating to our special commissioner the weight to be given to a community of interest in stock or the existence of stock ownership in the same individuals, or to the use of stock for a joint purpose, if any be shown, suffice it to say that we hold the ownership of stock a matter material to the pending investigation under the pleadings before us.
As to the contention that the stock book by express statute must be kept in New York, it must be apparent, first, that no such law is shown to exist, and, second, if it does exist, no reason is apparent why an exemplified and duly authenticated and compared copy of stock book entries might not be furnished.
We have considered all questions we deem material on this branch of the case, at this time, and are persuaded the motions should be overruled. It is accordingly so ordered.
II. We come now to the consideration of another group of questions submitted to us. It seems that during a hearing before the special commissioner the Attorney-General filed a petition to compel the inspection of a certain written contract alleged to exist between the Waters-Pierce Oil Company, or between a partnership composed of Pierce and Waters (alleged to be the predecessor of the Waters-Pierce Oil Co.) and a certain corporation known as the Consolidated Tank Line Company, said contract alleged to be in the possession of the Waters-Pierce Oil Company.
It seems, furthermore, that the Attorney-General filed a petition before the special commissioner the object and general nature of which was to compel the production of certain books and papers showing regular reports of the amount of oil it sells in the State of Missouri, to certain parties at 26 Broadway in the city of New York, at which place is maintained the offices of the Standard Oil Company and the Republic Oil Company.
It seems, furthermore, that two other petitions were filed before said special commissioner by the Attorney-General, one of them alleging that orders received by the Waters-Pierce Oil Company from oil consumers in the Missouri territory, alleged to be allotted to the Standard Oil Company, are sent by said Waters-Pierce Oil Company to the Standard Oil Company to be filled; and vice versa, that orders received by the Standard Oil Company from oil consumers in the Waters-
All said petitions were duly sworn to- and upon them the commissioner ruled that the said books, papers and documents should be produced before him at a certain definite time and place, or cause should be shown why the same should not be produced.
Afterwards the issuance and service of this order were waived and thereafter the said Waters-Pierce Oil Company filed a return to the order to show cause. This return to the order to show cause is pending before the said commissioner, and in it respondent sets forth divers reasons why, it says, it should not be complied with. The sufficiency of this return is also submitted to us.
During the pendency of the foregoing matters the Attorney-General sued out a subpoena duces tecum which, issued by the commissioner and directed to C.' M. Adams and R. B. Backus, was served upon Adams alone, who is the secretary of the Waters-Pierce Oil Company. This subpoena required the presence of Mr. Adams as a witness and that he produce certain designated and divers and sundry papers, books, documents, checks, vouchers, receipts, letters, copies of letters,
It furthermore seems that, without passing on the motion to quash the subpoena, the special commissioner required that Mr. Adams be sworn and compelled to testify. During his examination, lengthy portions of which are before us, many objections were made to questions propounded to him, some being ruled against respondents and others in their favor. By one of these questions this witness was compelled to answer that he was a stockholder in the Waters-Pierce Oil Company. Strenuous objection was made to going into the ownership of stock, but the commissioner ruled in favor of the Attorney-General. This question was followed by others directed to witness’s knowledge of the other stockholders in the Waters-Pierce Oil Company and these questions were allowed by the commissioner over objection'by respondent.
At this stage of the examination, by the advice of respondents’ counsel and after the commissioner had ruled that examination into the ownership of stock was material (all of which is in accordance with our own holding in the prior part of this opinion), the witness, under the advice of counsel and on the theory that the question was privileged, we suppose, declined to answer a certain question. The transcript shows as follows :
££ Q. Isn’t it a fact, Mr. Adams, that at the present time the Standard Oil Company owns or controls, either by itself or through a person for it, approximately two-thirds of the stock of the Waters-Pierce Oil Company?
“Mr. Priest: Objected to for reasons last above stated.
“To which action and ruling of the commissioner the respondents and each of them duly excepted at the time and still except.
“Mr. Johnson. We advise the witness not to answer on the ground stated.” (As heretofore stated these grounds related to the question of privilege, as we understand the record).
“A. I decline to answer.”
Following this a question was propounded to the witness as to whether he makes out the dividend checks of the Waters-Pierce Oil Company at the present time. This question was objected to and ruled proper by the commissioner, and exceptions were saved. Counsel advised the witness not to answer and the witness refused. Following that, the ensuing questions, objections, colloquies, and rulings developed:
“ Q. Do you not know it to be a fact, Mr. Adams, that a dividend check is sent monthly, or as often as declared, to H. Clay Pierce, representing the dividend upon approximately three thousand nine hundred and ninety-six shares of the stock of the Waters-Pierce .Oil Company, and that two-thirds of that amount is regularly turned over by Mr. Pierce to Mr. Tilford, or some other representative of the Standard Oil Company at 26 Broadway?
“Mr. Priest: I object to the question in the form it is in. It is complex and compound.
“Commissioner: The objection will be overruled.
“To which action of the commissioner in overruling said objection the respondents, and each of them, then and there duly excepted at the time, and still except.
“Q. Mr. Hadley: Answer ,the question, Mr. Adams.
“Which objection was hy the commissioner overruled, and to the action of the commissioner in overruling said objection the respondents, and each of them, then and there duly excepted at the time, and still except.
“Mr. Johnson: We advise the witness, under the circumstances, not to answer the question.
“Q. Mr. Hadley: Do you decline to answer, Mr. Adams? A. I decline to answer.
“Q. For the reasons given hy Judge Priest? A. Yes, sir.
‘ ‘ Q. You were subpoenaed to bring the stock hook of the Waters-Pierce Oil Company here with you, were you not? A. I think that was mentioned.
“Q. Have you complied with that subpoena? A. I have not brought it; no, sir.
‘ ‘ Q. Are you willing to do so ?
‘ ‘ Mr. Priest: I submit that he has no power to do so, and he has made his return in writing, and a motion
‘ ‘ Commissioner: The proper course is for the witness to be interrogated as to his custody of the documents, and if he has not produced them, to give his reasons why.
“To which action and ruling of the commissioner the respondents, and each of them, then and there duly excepted at the time, and still except.
“Mr. Hadley: I assume that in my question.
“Mr. Priest: The paper which he has sworn to states the fact of his custody.
“Commissioner: I don’t understand that that paper filed here, at least I doubt very much whether that would constitute an answer for the witness himself. He is now on the stand and sworn, and he must answer these preliminary questions, whether or not he ■brought the book, whether or not it is in his custody, and if he did not bring it, why he did not bring it.
“To which action and ruling of the commissioner the respondents, and each of them, then and there duly excepted at the time, and still except.
“Mr. Hadley: The stock book of the Waters-Pierce Oil Company is in your custody, isn’t it, Mr. Adams ¶ A. It is in a safe in our office.
“ Q. You have charge of it as secretary of the company, have you not, and access to it? A. I have access to it and others have access to it; other officers of the company.
“ Q. You are secretary of the company and as secretary have charge of the stock book of the company, do you not ?
“Commissioner: The only question is whether he has access to it and could get it and produce it here. I will permit the question. >■<
“To which action and ruling of the commissioner the respondents, and each of them, then and there duly excepted at the time, and still except.
“Q. Mr. Hadley: Answer the question. Have you got the custody of that stock book of the Waters-Pierce Oil Company? A. I can’t say that it is wholly in my custody.
“Q. Could you get it in your custody and bring it here in response to this subpoena if there were no legal objections raised by the Waters-Pierce Oil Company to your doing so ? A. I would not consider that I had any right to take that book out of the safe and bring it here without authority.
“Q. Prom whom? A. Prom a. superior officer.
“ Q. Even if a court should order you to bring it here? A. I have no jurisdiction over that book. It is not in my custody to that extent that I could take it out of the office.
“Q. Well, it is in your care, is it not, and in your office as secretary? A. It is in-the safe in the office.
“Q. And the laws of this State provide, do they not, to your knowledge, that the secretary of the corporation shall have charge of the stock book of the corporation? A. I don’t know about the legal aspect of tlie matter.
“Mr. Priest: We object to the question.
“Commissioner: Objection sustained......
“Q. Mr. Hadley: Have you brought that stock book here? A. I have not.
“Q.' Are you willing to produce it here? A. Not unless counsel advise me to do so.
“Q. Why have you not brought it here?
“Q. Commissioner: Mr. Adams, you may state whether or not that was the reason you did not bring that book? A. Under advice of counsel I was told that it would not be necessary to bring it here.
“Q. Mr. Hadley: Is that the only reason why you have not brought it? A. Yes, sir.”
Thereupon the matter, to-wit, whether the witness should be compelled to answer each and every of said propounded interrogatories and produce said stock book, etc., was also certified to this court by the consent of counsel on both sides and the acquiescence of the commissioner.
In briefs here it is asserted by respondents and denied by informant that a question was certified relating to the materiality of evidence tending to show stock ownership. As we understand the record before us, no such question was certified by our commissioner. To the contrary, he had invariably ruled on the question of materiality against respondents, and, as said before, his rulings were to the same effect as our holding in the former part of this opinion. But it makes no difference whether the question of materiality was certified here or not, because in our opinion we should decline at this time to pass upon any of the petitions, orders, subpoenaes, motions, returns, objections and questions certified to us by the commissioner. Because, if in spite of our submission of this case to a special commisioner, we are to be required, as the ingenious versatility of counsel, on either side or jointly, may suggest from time to time, to issue orders to our commissioner to rule this way, that way or the other way, upon questions pending before him, or to withdraw, pro tanto and pro hoc vice, our submission and take upon ourselves the burden of the case on interlocutory matters, the very object of the submission would be manifestly and largely defeated. This court has im
The matters certified to us are, therefore, recertified to our special commissioner that he may proceed therewith and with all other matters pertinent to this hearing under the broad and flexible power given him by his order of appointment.