In a suit in a circuit court of the United States brought by the
United States against corporations for violations of the Anti-Trust
Law of July 2, 1890, a witness refused to answer questions or
produce books before the examiner on the ground of immateriality,
also pleading the privileges of the Fifth Amendment; the court
overruled the objections and ordered the witness to answer the
questions and produce the books, an appeal was taken to this Court.
Held that:
While such an order might leave the witness no alternative
except to obey or be punished for contempt, it is interlocutory in
the principal suit, and not a final order, nor does it constitute a
practically independent proceeding amounting to a final judgment,
and an appeal will not lie therefrom to this Court.
If the witness refuses to obey and the court goes further and
punishes him for contempt, there is a right of review, and this is
adequate for his protection without unduly impeding the process of
the case.
The facts are stated in the opinion.
Page 201 U. S. 118
MR. JUSTICE McKENNA delivered the opinion of the Court.
At the very beginning, we encounter a question of jurisdiction.
Are the orders of which the appellants complain appealable? The
orders direct the appellants respectively to appear before Robert
F. Taylor, special examiner in the case at the time and place to be
designated, and direct each of them to "answer each and every
question put to them respectively by the counsel for the
complainant, the United States of America," and to produce before
such commissioner certain books, papers, records, documents,
reports, and contracts, "for the purpose of their respective
examination in said cause, and for use in evidence of the complaint
of the United States of America in said examination." And it is
ordered that the complainant's counsel shall have the right to
inspect the said books, etc., and to introduce them or any of them
in evidence; but, except as necessary for such purposes, the books,
etc., to remain in the custody of the appellants.
A brief statement of the proceedings is all that is necessary.
The United States, by its proper officers, brought suit in the
Circuit Court of the United States for the District of Minnesota
against the General Paper Company and twenty-three other
corporations, defendants, under and pursuant to the provisions of
the act of Congress of July 2, 1890, entitled "An Act to Protect
Trade and Commerce against Unlawful Restraints and Monopolies." It
is alleged in the bill that the defendants, other than the General
Paper Company and the Manufacturers' Paper Company, were engaged in
the manufacture of manilla and fibre papers in active competition
with one another, and that they entered into an agreement,
combination, and conspiracy to control, regulate, and monopolize
not only the manufacture of news print, manilla, fibre, and other
papers, but also the distribution and shipment thereof among and
throughout the middle, southern, and western states. The General
Paper Company was the means employed to execute the combination and
conspiracy. That company is a corporation organized, the bill
alleges, by
Page 201 U. S. 119
the other defendants, under the laws of the State of Wisconsin,
with a capital stock of $100,000, divided into one thousand shares,
which were distributed among and owned and held by the other
defendants in proportions based upon the average daily output of
the mills of each defendant. It is authorized to become at its
principal place of business the sales agent of the products of the
defendants' mills in the State of Wisconsin and elsewhere. Absolute
power is conferred upon it to control and restrict the output of
the mills, fix the price of their products, and determine to whom
and the terms and conditions upon which such products shall be
sold, into what states and places they shall be shipped, and what
publishers and customers each mill shall supply.
The Manufacturers' Paper Company, it is alleged, is a New York
corporation, with its principal place of business in Chicago, and,
from about the year 1897 to 1902, acted as the sales agent of
various manufacturers of paper for the sale of news print and other
papers; that in 1902 it became a party to the combination and
conspiracy alleged in the bill, and agreed with the General Paper
Company not to compete with it in certain territories.
It is admitted that, prior to the formation of the General Paper
Company, the other defendants, except the Manufacturers' Paper
Company, were in active competition. The formation of the General
Paper Company is also admitted, and that it became, by contract
with the defendants who manufacture paper, their selling agent. The
defendants deny, however, a purpose to violate the Act of July 2,
1890. The violation of that law is the issue in the case, and the
bill prays an injunction against the defendants and their officers
from doing the acts or executing the purpose charged against
them.
In trial of the issue thus made, the circuit court appointed
Robert S. Taylor special examiner, with authority to hear and take
testimony within and without the District of Minnesota, and made an
order fixing the time to take the testimony for the United States
the sixteenth of May, 1905 at the City of Milwaukee,
Page 201 U. S. 120
State of Wisconsin. The order was duly served on the counsel of
the respective parties. Thereupon the United States petitioned the
circuit court for an order directing the clerk of the circuit court
to issue a subpoena
duces tecum. The subpoena was duly
issued and served on the appellants as individuals and as officers
of certain of the defendant companies. They appeared before the
examiner in obedience to the subpoena, but, under the advice of
counsel, they refused to permit the use of books or certain parts
of them, and refused to answer certain questions put to them the
ground of this action being the immateriality and irrelevancy of
the evidence sought to be adduced. The United States then presented
a petition to the United States Circuit Court for the District of
Wisconsin which recited the issues in the case, and the statement
of the questions asked, and the parts of the books and documents
sought to be used. To this petition the appellants filed separate
answers.
The answers may be regarded for out present purpose as
identical. They allege the immateriality of the evidence and that
its materiality should be established as a condition precedent to
its production; that they are officers of the companies, and, as
such officers, the custodians of the books, papers, and documents,
and that the same are of interest and value to the company in its
business, and the company forbids their production; that the United
States seeks evidence to convict the company and the individual
appellants of violations of the Act of July 2, 1890, to annul the
contracts and agreements of the company, and subject it and the
other appellants to the penalties prescribed in that act, and to
compel the company and the other appellants to furnish evidence
against themselves, contrary to the provisions of the Fifth
Amendment to the Constitution of the United States, which provides
that no person shall be a witness against himself; also contrary to
the Fourth Amendment of the Constitution of the United States,
which provides that the right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches
and seizures shall not be violated. It is also said that the
alleged acts of the
Page 201 U. S. 121
paper company complained of in the original petition of the
United States, and which the United States is endeavoring to
establish, would, if committed by the company, be violations of the
laws of Wisconsin, and would subject the company to forfeiture of
its charter and other penalties under said laws, and to compel it,
through its officers, to produce the books and documents sought
would be to compel it to furnish evidence tending to establish that
it has violated the law of the state, and such purpose is contrary
to the provisions of the Fourth and Fifth Amendments of the
Constitution of the United States.
As we have said, the court entered orders requiring the
appellants to answer the questions put to them and to produce the
books, papers, and documents requested. Appeals were allowed to
this Court. To justify the appeals, appellants contend that the
orders of the circuit court constitute practically independent
proceedings and amount to final judgments. To sustain the
contention,
Interstate Commerce Commission v. Brimson,
154 U. S. 447, and
Interstate Commerce Commission v. Baird, 194 U. S.
25, are cited.
Those cases rested on statutory provisions which do not apply to
the proceedings at bar, and, while there may be resemblances to the
latter, there are also differences. In a certain sense finality can
be asserted of the orders under review; so, in a certain sense,
finality can be asserted of any order of a court. And such an order
may coerce a witness, leaving him no alternative but to obey or be
punished. It may have the effect and the same characteristic of
finality as the orders under review, but from such a ruling it will
not be contended there is an appeal. Let the court go farther, and
punish the witness for contempt of its order -- then arrives a
right of review, and this is adequate for his protection without
unduly impeding the progress of the case. Why should greater rights
be given a witness to justify his contumacy when summoned before an
examiner than when summoned before a court? Testimony at times must
be taken out of court. In instances like those in the case at bar,
the officer who takes the testimony, having no power to
Page 201 U. S. 122
issue process, is given the aid of the clerk of a court of the
United States; having no power to enforce obedience to the process
or to command testimony, he is given the aid of the judge of the
court whose clerk issued the process, and if there be disobedience
of the process, or refusal to testify or to produce documents, such
judge may
"proceed to enforce obedience . . . or punish the disobedience
in like manner as any court of the United States may proceed in
case of disobedience to like process issued by such court."
Sections 868, 869, Revised Statutes. This power to punish being
exercised, the matter becomes personal to the witness, and a
judgment as to him. Prior to that, the proceedings are
interlocutory in the original suit. This is clearly pointed out by
Circuit Judge Van Devanter, disallowing an appeal from an order
like those under review, in the case of
Nelson v. United
States, (No. 490), in error to the Circuit Court of the United
States for the District of Minnesota. The learned judge said:
"I am of opinion that the mere direction of the court to the
witnesses to answer the questions put to them and to produce the
written evidence in their possession is not a final decision; that
it more appropriately is an interlocutory ruling or order in the
principal suit, and that, if the witnesses refuse to comply with it
and the court then exercises its authority either to punish them or
to coerce them into compliance, that will give rise to another case
or cases to which the witnesses will be parties, on the one hand,
and the government, as a sovereign vindicating the dignity and
authority of one of its courts, will be a party on the other hand.
I have no doubt that a judgment adverse to the witnesses in that
proceeding or case will be a final decision, and will be subject to
review by writ of error, but not by appeal. My opinion is also that
the parties to the principal suit cannot appeal or obtain a writ of
error from that decision."
See also Logan v. Pennsylvania R. Co., 132 Pa. 403,
410.
This Court having no jurisdiction, the appeals must be
dismissed, and
It is so ordered.