An officer of a corporation is not subjected to an unreasonable
search or seizure by a subpoena to produce without
ad
testificandum clause the books and papers of that corporation,
nor is he subjected to self-incrimination by such subpoena and an
order to produce thereunder or deprived of his liberty without due
process of law by being committed for contempt for failure to
comply with such order.
Wilson v. United States,
221 U. S.
361.,
Books of a corporation are not the private books of any of the
officers, and do not become so by the dissolution of the
corporation and the transfer of the books to one of such
officers.
The facts, which involve the validity under the due process and
search and seizure provisions of the Constitution of a subpoena
duces tecum to an officer of a corporation to produce
books and papers of the corporation, are stated in the opinion.
Page 226 U. S. 482
MR. JUSTICE DAY delivered the opinion of the Court.
These cases arise from the following facts: on April 12, 1912,
the federal grand jury in Boston was investigating whether Warren
B. Wheeler and Stillman Shaw, plaintiffs in error in Nos. 658 and
659 and appellants in Nos. 660 and 661, had, by means of a certain
corporation known as Wheeler & Shaw, Incorporated, or
otherwise, violated ยง 215 of the Act of Congress of March 4, 1909,
35 Stat. 1088, 1130, c. 321, making it a crime to use the mails of
the United States for a scheme to defraud, which crime is
punishable by fine or imprisonment or both. On the same day, a
subpoena
duces tecum, without
ad testificandum
clause, was issued, summoning the corporation to appear
Page 226 U. S. 483
before the grand jury and produce all the cash books, ledgers,
journals, and other books of account of the company, and all copies
of letters and telegrams of Wheeler & Shaw, Incorporated,
whether signed or purporting to be signed by the corporation or by
its president or treasurer in its behalf, for and covering the
period from October 1, 1909, to January 1, 1911; all the aforesaid
books and copies of letters and telegrams to be produced before the
grand jurors under the penalties of law. The subpoena was served on
Wheeler as treasurer, and on Shaw as president, of the corporation.
They appeared before the grand jury, without any of the books or
correspondence, as required in the subpoena, however, asked to be
sworn for the purpose of explaining why they had not brought them,
and left with the grand jurors papers containing the following
statement of their reasons for the nonproduction of the books, etc.
(the records are the same,
mutatis mutandis, in the
Wheeler case and the Shaw case):
"To the Grand Jurors of the District Court of the United States
for the District of Massachusetts."
"Gentlemen: There was served upon me at 12:50 P.M. today, April
12, 1912, a subpoena addressed to Wheeler & Shaw, Inc. a
corporation doing business at Boston, in said district, and calling
upon that corporation to produce before you, presumably through
me,"
"all cash books, ledgers, journals, and other books of account
of said Wheeler & Shaw, Inc., for and covering the period
between October 1, 1909, and January 1, 1911, all copies of letters
and telegrams of Wheeler & Shaw, Inc., signed or purporting to
be signed by said Wheeler & Shaw, Inc., or by its president or
its treasurer in behalf of said Wheeler & Shaw, Inc., during
the months of October, November, and December, 1909, and the entire
year of 1910; all the aforesaid books, copies of letters, and
telegrams to be produced
Page 226 U. S. 484
before the grand jurors of said district court in the matter of
an alleged violation of the laws of the United States by Warren B.
Wheeler and Stillman Shaw."
"I desire to avail myself of what I understand to be my right to
state to you my reasons for not producing any books, ledgers, or
other papers or documents in response to said summons. My reasons
are:"
"First: That I have not in my possession or custody any cash
books, ledgers, journals, or any of the other books or things
described in said subpoena which belong to Wheeler & Shaw,
Inc., or are in my possession as an officer or agent of Wheeler
& Shaw, Inc. The only cash books, ledgers, journals, and other
books, papers, and things to which the aforesaid description in
said subpoena could apply are the personal property of myself and
Stillman Shaw, and are in our personal possession, and are not in
the possession of either of us as officers or agents of any
corporation."
"Second: even were the fact not as stated above, I am advised
that the language of said subpoena quoted above is so broad,
sweeping, and lacking in particularity as to constitute a violation
of the rights of any party to whom a subpoena is addressed to be
exempt from unreasonable searches and seizures under the Fourth
Amendment to the United States Constitution."
"Third: whether addressed to said corporation or to me
personally, I am advised that said subpoena violates the rights
secured to me by the Fifth Amendment to the Constitution of the
United States not to be a witness against myself in any criminal
case."
"I make this statement in good faith, and not intending any
disrespect to the grand jury, or to the officers of the government,
and I venture to remind the grand jury that I am entitled under the
laws of the United States not to have any inferences drawn against
me by reason of the action I have taken in this matter. It is one
thing to produce private books and papers in a proceeding
Page 226 U. S. 485
where there is an opportunity to explain them and to examine and
cross-examine witnesses concerning them; but the situation in an
ex parte proceeding is so different that I feel sure the
grand jury will feel that I am justified in standing upon any
constitutional rights in this matter."
"WARREN B. WHEELER"
The grand jurors, on April 13, 1912, filed in the district court
a paper called a petition for attachment for contempt, in which
they prayed that Wheeler and Shaw be ordered to produce the books
and copies of letters and telegrams, and upon failure or refusal be
adjudged guilty of contempt. Wheeler and Shaw appeared, filed
motions to dismiss, which were denied, and then filed sworn
answers. The cases were heard by the district judge on the grand
jurors' petitions, the answers, and certain agreed facts. At the
close of the hearing, the court ruled that the case was governed by
Wilson v. United States, 221 U. S. 361, and
ordered Wheeler and Shaw to produce the books and papers described
in the subpoena. Final orders were entered on April 18, 1912,
adjudging them in contempt and committing them to the custody of
the marshal until, by producing before the grand jury the books and
copies of letters and telegrams, they should cease to obstruct and
impede the corporation known as Wheeler & Shaw, Incorporated,
from complying with the subpoena
duces tecum, or otherwise
purge themselves of their contempt.
From these judgments, Wheeler and Shaw sued out writs of error,
which constitute cases Nos. 658 and 659. They also filed petitions
for writs of habeas corpus against the marshal, and from the orders
denying the petitions they appealed to this Court, and these cases
constitute Nos. 660 and 661.
Upon the hearing, the district judge made certain findings of
fact, as follows:
Page 226 U. S. 486
"1. A subpoena, of which a copy, with a copy of the officer's
return thereon is annexed to said petition, was served upon the
defendant on the twelfth day of April, A.D. 1912."
"2. The corporation mentioned in the statute of the Commonwealth
of Massachusetts, which took effect on March 25, 1912, being
statute 1912, Chapter 313, and therein described by the words
'Wheeler and Shaw, Inc.,' is the same corporation that is mentioned
in said subpoena. [By the statute, the corporation was dissolved
and its charter annulled.]"
"3. On the afternoon of said April twelfth, the defendant
appeared before said grand jury in response to said subpoena, and
thereupon the questions, of which a copy is annexed to said
petition, were put to him, and answers, as stated in the copy of
the same annexed to said petition, were made by him, and the
written statement, of which a copy is annexed to said petition, was
left by him with said grand jury. The defendant did not bring with
him or have before said grand jury any of the books and copies of
letters and telegrams described in said subpoena. He did, when
before said grand jury, ask to be sworn for the purpose of stating
the reasons why he had not brought with him any of said books and
copies of letters and telegrams; but he was not sworn. He did not
waive or intend to waive his claim of a right to be sworn before
said grand jury for the purpose aforesaid."
"4. Some time in the month of April, 1911, said corporation
Wheeler & Shaw, Inc., ceased to do business, and shortly
afterwards, the legal title and possession of all the books and
papers of said corporation then belonging to it, including all the
books and copies of letters and telegrams described in the
subpoena, were lawfully transferred to the defendant and to one
Stillman Shaw as tenants in common, and have ever since remained in
the defendant and said Shaw. Prior to the time when said statute
of
Page 226 U. S. 487
1912, c. 313 [dissolving the corporation], took effect, the
defendant was the treasurer of said corporation, and said Shaw was
the president thereof, and neither the defendant nor said Shaw has
ever resigned his said office in said corporation."
Wheeler and Shaw also took bills of exceptions, in which it
appears that the cases were heard upon the petitions, sworn
answers, and certain facts admitted by counsel in open court, which
are set out and incorporated in the finding of fact appearing of
record, and in which it is further made to appear that defendants
at the hearing before the court repeated the claim set up by them
before the grand jury that a compliance with the subpoena
duces
tecum would violate their right to be secure against
unreasonable searches and seizures under the Fourth Amendment of
the United States Constitution, and their right not to be compelled
to be witnesses against themselves in any criminal case, under the
protection of the Fifth Amendment. They also asked the court to
rule that such order would violate their rights under the
Massachusetts Constitution. The court overruled all of the
objections of defendants, and held as a matter of law that the
legal effect of dissolving the corporation and transferring to the
defendants the books and copies of letters and telegrams described
in the subpoena had not been to make the books and papers the
private property of the defendants in such sense as to exempt them
from producing such books and correspondence before the grand jury,
as required by the subpoena, and that the facts of the cases
brought them within the rule of this Court in
Wilson v. United
States, supra.
The defendants reduce their contentions in this Court to two
propositions, namely:
"I. The orders of commitment and the imprisonment thereunder
have deprived the plaintiffs in error and appellants [referred to
in this opinion as defendants] of their liberty without due process
of law. "
Page 226 U. S. 488
"II. If, as is agreed, the books and papers described in the
subpoena were the private property of the plaintiffs in error and
appellants, then the court's order requiring their production
before the grand jury, and the judgments of contempt based upon the
disobedience of that order, violated the right of each plaintiff in
error and appellant under the Fifth Amendment not to be compelled
in any criminal case to be a witness against himself, and the right
of each under the Fourth Amendment to be exempt from unreasonable
searches and seizures."
The proposition that the orders of the court of commitment and
imprisonment deprived defendants of their liberty without due
process of law seems to be based upon the contention that the
corporation was in no way obliged to obey the subpoena, and that,
after its dissolution, it was not subject to any subpoena requiring
the production of books and papers before the grand jury. But we do
not think there is any merit in this objection. If the government
had the legal right to demand the production of the books and
papers in question, with a view to the investigation of the alleged
offense of Wheeler and Shaw in the proceedings before the grand
jury, whether the subpoena was drawn in proper form or not, or
whether the corporation, in view of its dissolution, could have
been compelled to comply with its requirements, in the attitude
which the case has taken, is immaterial. It is apparent from the
facts already recited that Wheeler and Shaw were required by the
subpoena
duces tecum to bring before the grand jury the
books and papers of the corporation which had been dissolved, and
that they so understood the subpoena; that they were in possession
of such books and papers which could be by them produced before the
grand jury, and that, before the order of commitment was made, the
defendants were allowed a full hearing in a court of competent
jurisdiction. No objection was taken to the technical form of the
subpoena in directing it to
Page 226 U. S. 489
the corporation, and not the individuals. There is nothing to
show it was so broad as to be objectionable, as was indicated of
the subpoena in
Hale v. Henkel, 201 U. S.
43. The defendants, in possession of the books and
papers, were denying the right of the court to compel their
production because of the dissolution of the corporation; because
the title and possession of the books and papers had passed to the
defendants individually and were their private property as tenants
in common, and they had no possession or custody of the documents
as officers of the corporation, and because, as against them, the
compulsory production of such books and correspondence would
violate their rights under the Fourth and Fifth Amendments to the
Constitution of the United States.
We think the questions of substance now presented are whether
the rights of the defendants as individuals to be exempt from
unreasonable search and seizure of their property and from being
compelled to be witnesses against themselves would be violated by
the compulsory production of the documents in question.
We are of opinion that this case is virtually ruled by
Wilson v. United States, supra. In that case, it was held
that there was no unreasonable search or seizure where the officer
of a corporation, whose guilt of an offense against the laws of the
United States was under investigation, was compelled to produce
books and papers of the corporation of which he was president,
because, as against the corporation, the true owner of the books
and papers, their production might lawfully be compelled, and that
there was no self-incrimination of such officer, because he was not
compelled to produce his private books, but the books of the
corporation, which were not within the protection given to the
private books and papers of an individual. We are unable to see
that this case differs in principle from that one. It is true the
corporation in the present case had ceased to exist, but
Page 226 U. S. 490
its books and papers were still in existence and were still
impressed with the incidents attending corporate documents. Wheeler
and Shaw had been officers of the corporation, and the books of the
company had, before the dissolution, been made over to them; but
this did not change the essential character of the books and
papers, or make them any more privileged in the investigation of
crime than they were before.
Wheeler and Shaw, it may be admitted, could no longer be
officers of the corporation, although the record shows that they
had never resigned their positions. The corporation, however, had
gone out of existence, leaving its books and papers in the
possession of the defendants, and it may be conceded, for many
purposes such books belonging to them; but, as was held in the
Wilson case, the privilege of the Constitution against
unreasonable searches and seizures does not protect against the
lawful examination in due course of books of this character, nor
does the privilege of individuals against self-incrimination in the
production of their own books and papers prevent the compulsory
production of the books of a corporation with which they happen to
be or have been associated. It was the character of the books and
papers as corporate records and documents which justified the court
in ordering their production, as this Court ruled in the
Wilson case. We think the character of the books was not
changed for this purpose, because the corporation had gone out of
existence after making over the books to the defendants. Such books
and papers still remained subject to inspection and investigation,
and no constitutional right of the defendants was violated when,
being found in possession of the documents, they were required to
produce them for inspection by the grand jury. It follows that the
judgments of commitment in Nos. 658 and 659, and the orders
appealed from in Nos. 660 and 661, should be
Affirmed.