Whether a notice to produce books and papers is broader than the
state statute provides for is not a federal question.
So long as an opportunity to be heard is given to the party
objecting to a notice to produce books and papers, before the
proceeding to enforce such production is closed, due process of law
is afforded, and if the state court has construed the statute
providing for such production to the effect
Page 207 U. S. 542
that objections raised before a grand jury must be reported to
the court for action, there is opportunity to be heard.
It is within the power of the state, and due process of law is
not denied thereby, to require a corporation doing business in the
state to produce before tribunals of the state books and papers
kept by it in the state, although at the time the books may be
outside of the state.
Nothing in the federal Constitution prohibits a state from
conferring judicial functions upon nonjudicial bodies.
A corporation required to produce books.and papers cannot refuse
to produce any of them on the ground that they might incriminate
it. It is for the court, after an inspection, to determine the
sufficiency of the objection and what portion, if any, of the books
and papers produced should be excluded.
In this case, the notice, given under a state statute, to
produce books and papers did not amount to an unreasonable search
or seizure.
Adams v. New York, 192 U.
S. 585.
Quaere, and not decided, whether the
Fourteenth Amendment has made the provisions of the Fourth and
Fifth Amendments immunities and privileges of citizens of the
United States of which they cannot be deprived by state action.
An objection that a notice to produce books and papers is too
broad cannot be urged against the validity of the order adjudging
the party refusing to comply guilty of contempt.
Hale v.
Henkel, 201 U. S. 43. Nor
is a notice to produce too broad if, as in this case, it is limited
to books and papers relating to dealings with certain specified
parties between certain specified dates.
If the person producing the books and papers is entitled, under
the general law of the state, to compensation as a witness, the
failure of the statute requiring the production of the books and
papers of corporations to provide compensation to the corporation
itself for the time, trouble and expense of such production does
not amount to taking private property without compensation.
A state statute providing for the production of books and papers
by corporations does not deny to corporations the equal protection
of the laws; such a classification is a proper one.
The statute of Vermont of October 9, 1906, providing for the
production of their books and papers by corporations before courts,
grand juries, and other tribunals, and punishing corporations
failing to comply therewith as for contempt, is not
unconstitutional as depriving corporations of their property
without due process of law, or as denying them the equal protection
of the law, or as conferring judicial functions on nonjudicial
bodies, or as taking private property for public use without
compensation, or as constituting unreasonable searches and seizures
or requiring corporations to incriminate themselves.
66 A. 790 affirmed.
This writ of error brings up for review a judgment of the
Page 207 U. S. 543
Supreme Court of the State of Vermont affirming a judgment of
the County Court of the County of Chittenden adjudging the
plaintiff in error, a corporation, hereinafter called "the
company," in contempt and fining it $3,000, for the collection of
which it was ordered that execution should issue.
The company in due form was served in Vermont with a notice to
produce certain described books and papers before the grand jury
sitting at Burlington, in that state. The notice was given pursuant
to the provisions of a statute passed by the general assembly of
the state, October 9, 1906. That statute provided for the service
upon a corporation doing business in the state, whether organized
under its laws or those of another state or country, of a notice to
produce books and documents before any court, grand jury, etc.,
which contained any account or information concerning the subject
of inquiry before the tribunal, acting under the authority of the
state, and which books, etc., have at any time been made or kept
within the State of Vermont, and were within the custody or control
of the corporation in that state or elsewhere at the time of the
service of the notice upon it. Such corporation, when notice to the
above effect is served upon it, is, by the statute, directed to
produce the books and papers as required. The notice is to be
issued from the court or tribunal before whom the papers are
required to be produced, and a general description of what is
required is to be given in the notice. If the corporation, without
reasonable cause, neglects or refuses to comply,
"it may be punished as for contempt by the court having
jurisdiction in the premises to punish for the contempt. Execution
may issue for the collection of such fine as may be imposed for
such contempt."
This company was doing business at Burlington, Vermont, under a
certificate from the secretary of state certifying that it had
complied with all the requirements of the law authorizing it to do
business in the state. On the seventeenth of October, 1906, the
grand jury was in session at Burlington,
Page 207 U. S. 544
and had been investigating a complaint which had been made
against certain individuals who were members of the Vermont cattle
commission, the complaint being that such persons, or one of them,
had unlawfully sold diseased meat for food purposes at Burlington.
In order to continue the investigation, the grand jury had caused a
notice under the above statute to be served upon the company
directing it to produce certain books and papers described in such
notice before the grand jury on the seventeenth of October, 1906.
On the day named, a person representing the company appeared before
the grand jury and produced some books of account and other data,
but failed to produce others which were described in the notice,
and which it was therein directed to produce. The grand jury
reported the facts to the county court, stating in the report that
the company had kept books which would have shown material facts
for the purpose of the investigation, but had not produced them, as
required in and by the notice, and that they were necessary for the
further pursuit of the inquiry. The attorney general at the same
time filed a petition to the court, containing, in substance, the
same facts, and asked that the company should be proceeded against
for contempt. The county court thereupon, on the nineteenth of
October, 1906, made an order to show cause why the company should
not be punished as for a contempt in failing to produce such books
and papers. Upon the return of the order, the company appeared by
counsel and made a motion to dismiss the proceeding on the ground
that the memoranda and papers called for in the notice were not
legal and material evidence before the grand jury, and also because
it was sought by the notice to produce, and by the other
proceedings to compel the company to bring into the State of
Vermont, before the grand jury, papers which might tend to
criminate the company and render it liable to criminal prosecution,
contrary to the provisions of the Fourth, Fifth, and Fourteenth
Amendments to the Constitution of the United States. Accompanying
this motion to dismiss was the affidavit of counsel in which he
stated that
Page 207 U. S. 545
the papers and memoranda which the company had failed to produce
before the grand jury would, if produced in evidence before the
jury, tend to criminate the company and render it liable to
criminal prosecution. The company also answered and admitted that
it had kept at Burlington, in Vermont, such papers as were
described in the notice to produce, but that, on August 20, 1906,
all such books and papers were sent to the main office of the
company at Boston, Massachusetts, for the purpose of examination
and verification, and that, after it was made, and long before the
service of the notice, such papers or memoranda as were not
produced before the grand jury had been destroyed at Boston. The
state took issue upon the averments of the answer.
Upon the hearing before the court, one of the company's agents
testified that the papers had been destroyed in Boston because they
were of no consequence, and there was nothing in them to
incriminate anybody.
The court, for reasons which it stated, found that the papers
wanted were material to the inquiry which the grand jury was
making, and that, without their presence, it was impossible to
proceed to any effect with the investigation. It further found,
upon all the evidence before it, that the books and papers had been
in possession of the company at the time they were taken away from
the state, and the court said that it failed to find that the
papers were destroyed, and that it also failed to find that they
were not then in the custody and control of the company so that it
could produce them, and that, "thus failing to find, we find them
guilty of contempt." This judgment was affirmed by the Supreme
Court of Vermont. 66 A. 790.
Page 207 U. S. 550
MR. JUSTICE PECKHAM, after making the foregoing statement,
delivered the opinion of the Court.
We take the findings of fact by the state court as conclusive
upon us. It therein appears that the company was duly served with a
notice (which was in substance a substitute for a subpoena
duces tecum) to produce books and papers required, and
that they had not been destroyed, but were then under its control
and custody; that the papers were material evidence upon the
subject of inquiry before the grand jury, and that the company had
(with some minor exceptions) omitted and refused to produce them
before that body. The company had a hearing before the court, and
an opportunity was given it, under the statute, to set up any
reasonable cause for its failure to comply with the requirements of
the notice. The court, after this hearing, found the company guilty
of the contempt charged and fined it accordingly.
The company insists that the proceedings were in violation of
the Constitution of the United States. The objections made before
us were: (1) that the notice to produce was in excess of the
authority granted by the statute, and was therefore invalid; (2)
that neither the statute nor the notice afforded the company an
opportunity to present in court reasons why the writings demanded
should not be produced; (3) that the effect of the statute is to
limit a corporation in the complete dominion and control of its
property situated in another state, although the corporation is not
organized under the laws of the State of Vermont, and is not
personally within her jurisdiction; (4) that the statute attempts
to confer judicial functions upon nonjudicial bodies, in violation
of the Fourteenth Amendment to the Constitution of the United
States; (5) that the statute and notice required the company to
produce writings which tend to incriminate it, without extending
immunity
Page 207 U. S. 551
against criminal prosecution; (6) that the statute and notice
authorized an unreasonable search and seizure of the private books
and documents of the company; (7) that the statute provided no
compensation for the time, trouble, and expense imposed upon a
corporation in a foreign state or country of collecting and sending
the documents demanded to the State of Vermont, and lastly (8) that
the statute is confined in its operation to corporations, thus
making an arbitrary classification, by which the company is
deprived of the equal protection of the law secured by the
Fourteenth Amendment.
The first objection made by counsel for the company is not of a
federal nature. Whether the notice to produce was broader than the
statute provided for is a question of the construction of the state
statute, and of the notice, and the decision of the state court is
final on that question.
Counsel insisted before us in discussing the second objection,
that the failure to give an opportunity to be heard why the books
should not be produced deprived it of due process of law guaranteed
under the Fourteenth Amendment. Without discussing the question
whether this matter comes within the meaning of due process of law,
we may say that the objection to the statute is not borne out by
its text. The company had, under its provisions, and by the fourth
section, full opportunity to show cause before the court why it did
not produce the papers, and the Supreme Court of Vermont has held
in this case that any objection to the production of the papers,
made before the grand jury, would have raised the question before
that body, which it would have been its duty to report to the court
for its action. Upon such question the company would have been
entitled to be heard, and it was in fact heard before the court
previous to any decision by the court regarding the right of the
company to withhold the papers. So long as a hearing is given
before any proceeding is concluded to enforce the production of the
papers, due process of law is afforded.
Simon v. Craft,
182 U. S. 427;
Wilson v.
Standefer, 184 U.S.
Page 207 U. S. 552
399-415;
New Orleans Waterworks Co. v. Louisiana,
185 U. S. 336-
185 U. S.
349.
The third objection is without force. It is argued that the
statute in this particular denies due process of law to the
company, because it authorized the infliction of a fine by the
court for failure to perform an act outside the state, ordered by a
nonjudicial body, and without notice and opportunity for hearing.
The last reason has already been answered by showing that a hearing
is provided for before any punishment of the company for
disobedience to the requirements of the notice to produce can be
enforced. There can surely be no illegality in providing that a
corporation doing business in the state, and protected by its
power, may be compelled to produce, before a tribunal of the state,
material evidence in the shape of books or papers kept by it in the
state, and which are in its custody and control, although, for the
moment, outside the borders of the state. The statute is in no
sense a provision as to how the company shall perform its duties
and obligations in other states. It directs the company doing
business in the state and present therein, by its officers or some
of them, to do something which it is entirely competent to do, the
purpose of which is to enable the tribunal making the investigation
under a state statute to perform its duty.
Fourth. There is no provision in the federal Constitution which
directly or impliedly prohibits a state, under its own laws, from
conferring upon nonjudicial bodies certain functions that may be
called judicial. It is said that the statute, in providing for the
production of books and papers, includes not only the court and
grand jury, but any tribunal or commission authorized by the state.
There is nothing, as we have said, in the federal Constitution
which prevents it.
The fifth objection is also without merit, even upon the
assumption that in such a case as this the company could take the
objection through the witness. The court simply held that it could
not determine whether the objection as to incrimination was valid
until the books were produced for inspection
Page 207 U. S. 553
by the court, though before they were to be used in evidence.
If, after that inspection, any portion were found of that
character, the court held that such portion would be excluded. As,
however, the company failed and refused absolutely to produce any
of the books, with some unimportant exceptions, it was adjudged to
have failed to show any reasonable cause for such refusal to comply
with the requirements of the notice, and it was fined for the
contempt. Obviously the company could not, by its refusal to
produce the books, thereby entirely conclude the court from any
examination whatever into the sufficiency of the excuses for such
nonproduction. Otherwise the company could disobey at its pleasure,
and so prevent any inquiry into the merits of the excuses. The
statute might as well not exist if this were to be permitted.
Sixth. The objection that the notice authorized by the statute
amounted to an unreasonable search and seizure of the private books
and documents of the company is also not well founded. In
Adams
v. New York, 192 U. S. 585,
where the question was raised, the court refused to discuss the
contention that the Fourteenth Amendment made the provisions of the
Fourth and Fifth Amendments to the Constitution of the United
States, so far as they related to the right of the people to be
secure against unreasonable searches and seizures, and to be
protected against being compelled to testify in a criminal case
against themselves, privileges and immunities of citizens of the
United States of which they could not be deprived by the action of
the state, because, on an examination of the record, the court
concluded that there had been no violation of this restriction,
either in the unreasonable search and seizure or in compelling
plaintiff in error to testify against himself. We are of opinion
that there was no violation of such rights in the case before us,
and we think it equally unnecessary to decide the question which
was left undecided in the
Adams case.
The objection is also made that the documents were not
Page 207 U. S. 554
described with the particularity required in the description of
documents necessary to a search warrant or subpoena, and that it
was not a valid paper, and created no obligation to obey the
notice, which could form no justification for any proceeding for
contempt, and was not due process of law. An examination of the
notice to produce shows that the requirements of the notice, while
quite broad, yet were limited to such books or papers as related
to, or concerned, any dealings or business between January 1, 1904,
and the date of the notice, October, 1906, with the parties named
therein, who were cattle commissioners of the State of Vermont, and
which papers were to be used relative to the matter of complaint
pending, and then and there to be investigated by the grand jury,
in which the persons named in the notice were charged with having
unlawfully sold diseased meat for food purposes at Burlington. The
notice also gave in detail the dates and amounts of checks and
vouchers which the company was required to produce. The company
refused to produce the books (with the exceptions stated), and,
even if the notice had been too broad, the objection cannot be
urged as to the validity of the order adjudging the company guilty
of contempt.
Hale v. Henkel, 201 U. S.
43. But unless it can be said that the court or grand
jury never has any right to call for all the books and papers, or
correspondence, between certain dates and certain persons named, in
regard to a complaint which is pending before such court or grand
jury, we think the objection here made is not well founded. We see
no reason why all such books, papers, and correspondence which
related to the subject of inquiry, and were described with
reasonable detail, should not be called for and the company
directed to produce them. Otherwise, the state would be compelled
to designate each particular paper which is desired, which
presupposes an accurate knowledge of such papers, which the
tribunal desiring the papers would probably rarely, if ever, have.
The notice is not nearly so sweeping in its reach as in the case of
Hale v. Henkel, supra.
Seventh. The next objection relates to the claim that the
Page 207 U. S. 555
statute provides no compensation for the time, trouble, and
expense imposed upon a corporation in a foreign state or country in
collecting and sending the documents demanded to the State of
Vermont, and that it thereby takes, if enforced, private property
for public use without compensation. The prohibition to that effect
is found in the Fifth Amendment to the federal Constitution. Here
again, we meet the question whether that Amendment, because of the
subsequent adoption of the Fourteenth Amendment, applies to a state
proceeding; but, for the reasons already stated, we do not find it
expedient to discuss it here. We do not say that, in any event, a
witness is entitled to compensation in order to avoid the above
constitutional provision, but the supreme court in this case has
held that the general law of the state in reference to the
compensation of witnesses applied to this statute. The answer which
the counsel for the company makes is that neither the statute nor
the notice required the attendance of anyone as a witness, but was
merely an order for production for which no compensation was
provided either by the statute or under the general law. But the
papers cannot walk into court of themselves, and when they are
brought there by virtue of the notice to produce served on the
company, and they are given to some person by the company for the
purpose of such production, he has a right to be sworn as to the
papers which he produces, for the purpose of identification, if
nothing else, and the state court has held that he is entitled as a
witness to compensation.
Lastly, the objection is urged that there is an arbitrary
classification in the statute, which is confined to corporations
alone, and the company is thereby deprived of the equal protection
of the laws secured by the Fourteenth Amendment. There is no
improper classification in this regard. It is stated by the state
court that, prior to the passage of this act, there was no adequate
provision for compelling the production of books and papers by a
corporation, and it was held that the statute was designed for
requiring the corporation itself, as
Page 207 U. S. 556
the responsible owner and custodian, to produce the documentary
evidence mentioned therein, without the necessity of calling upon
bookkeepers, managers, or other servants who may or may not in fact
have custody or control thereof at the time notice to produce is
given, and to place upon the corporation the responsibility of
seeing that such evidence called for, if in its control, is
produced. There is ample justification for the classification made
by the statute.
The judgment of the Supreme Court of the State of Vermont is
Affirmed.
