2. The mere facts of carrying on commerce not confined within
state lines and of being organized as a corporation do not make
men's affairs public.
Id.
3. A governmental fishing expedition into the papers of a
private corporation, on the possibility that they may disclose
evidence of crime, is so contrary to first principles of justice,
if not defiant of
Page 264 U. S. 299
the Fourth Amendment, that an intention to grant the power to a
subordinate agency will not be attributed to Congress unless
expressed in most explicit language. P.
264 U. S.
306.
4. The above act (§ 9) provides that the Commission shall at all
reasonable times have access to, for the purpose of examination,
and the right to copy, any documentary evidence of any corporation
being investigated or proceeded against, and that, to enforce
compliance, writs of mandamus may issue upon application of the
Attorney General.
Held, that access is confined to such
documents as are relevant as evidence to the inquiry or complaint
before the Commission, and that their disclosure cannot be
compelled without some evidence of their relevancy and upon a
reasonable demand.
Id.
283 F. 999 affirmed.
Error to judgments of the district court denying petitions for
writs of mandamus brought by the Attorney General to compel
disclosure of their records, by the defendants, to the Federal
Trade Commission.
Page 264 U. S. 303
MR. JUSTICE HOLMES delivered the opinion of the Court.
These are two petitions for writs of mandamus to the respective
corporations respondent, manufacturers and sellers of tobacco,
brought by the Federal Trade Commission under the Act of September
26, 1914, c. 311, § 9, 38 Stat. 717, 722, and in alleged pursuance
of a resolution of the Senate passed on August 9, 1921. The purpose
of the petitions is to require production of records, contracts,
memoranda, and correspondence for inspection and making copies.
They were denied by the district court. 283 F. 999. The resolution
directs the Commission to investigate the tobacco situation as to
domestic and export trade, with particular reference to market
price to producers, etc. The act directs the Commission to prevent
the use of unfair methods of competition in commerce, and provides
for a complaint by the Commission, a hearing and a report, with an
order to desist if it deems the use of a prohibited method proved.
The Commission and the party concerned are both given a resort to
the circuit
Page 264 U. S. 304
court of appeals. § 5 . By § 6, the Commission shall have power
(a) to gather information concerning, and to investigate the
business, conduct, practices, and management of any corporation
engaged in commerce, except banks and common carriers, and its
relation to other corporations and individuals; (b) to require
reports and answers under oath to specific questions furnishing the
Commission such information as it may require on the above
subjects; (d) upon the direction of the President or either House
of Congress, to investigate and report the facts as to alleged
violation of the Anti-Trust Acts. By § 9, for the purposes of this
act, the Commission shall, at all reasonable times, have access to,
for the purposes of examination, and the right to copy any
documentary evidence of any corporation being investigated or
proceeded against, and shall have power to require by subpoena the
attendance and testimony of witnesses and the production of all
such documentary evidence relating to any matter under
investigation. In case of disobedience, an order may be obtained
from a district court. Upon application of the Attorney General,
the district courts are given jurisdiction to issue writs of
mandamus to require compliance with the act or any order of the
Commission made in pursuance thereof. The petitions are filed under
this clause, and the question is whether orders of the Commission
to allow inspection and copies of the documents and correspondence
referred to were authorized by the act.
The petitions allege that complaints have been filed with the
Commission charging the respondents severally with unfair
competition by regulating the prices at which their commodities
should be resold, set forth the Senate resolution, and the
resolutions of the Commission to conduct an investigation under the
authority of §§ 5 and 6(a), and in pursuance of the Senate
resolution, and for the further purpose of gathering and compiling
information concerning the business, conduct and practices, etc.,
of
Page 264 U. S. 305
each of the respondent companies. There are the necessary formal
allegations and a prayer that, unless the accounts, books, records,
documents, memoranda, contracts, papers, and correspondence of the
respondents are immediately submitted for inspection and
examination and for the purpose of making copies thereof, a
mandamus issue requiring, in the case of the American Tobacco
Company, the exhibition during business hours when the Commission's
agent requests it, of all letters and telegrams received by the
Company from, or sent by it to all of its jobber customers between
January 1, 1921 to December 31, 1921, inclusive. In the case of the
P. Lorillard Company, the same requirement is made, and also all
letters, telegrams, or reports from or to its salesmen, or from or
to all tobacco jobbers' or wholesale grocers' associations, all
contracts or arrangements with such associations, and
correspondence and agreements with a list of corporations
named.
The Senate resolution may be laid on one side, as it is not
based on any alleged violation of the Anti-Trust acts within the
requirement of § 6(d) of the act.
United States v. Louisville
& Nashville R. Co., 236 U. S. 318,
236 U. S. 329.
The complaints, as to which the Commission refused definite
information to the respondents, and one at least of which, we
understand, has been dismissed, also may be disregarded for the
moment, since the Commission claims an unlimited right of access to
the respondents' papers with reference to the possible existence of
practices in violation of § 5.
The mere facts of carrying on a commerce not confined within
state lines and of being organized as a corporation do not make
men's affairs public, as those of a railroad company now may be.
Smith v. Interstate Commerce Commission, 245 U. S.
33,
245 U. S. 43.
Anyone who respects the spirit as well as the letter of the Fourth
Amendment would be loath to believe that Congress intended to
authorize
Page 264 U. S. 306
one of its subordinate agencies to sweep all our traditions into
the fire (
Interstate Commerce Commission v. Brimson,
154 U. S. 447,
154 U. S.
479), and to direct fishing expeditions into private
papers on the possibility that they may disclose evidence of crime.
We do not discuss the question whether it could do so if it tried,
as nothing short of the most explicit language would induce us to
attribute to Congress that intent. The interruption of business,
the possible revelation of trade secrets, and the expense that
compliance with the Commission's wholesale demand would cause are
the least considerations. It is contrary to the first principles of
justice to allow a search through all the respondents' records,
relevant or irrelevant, in the hope that something will turn up.
The unwillingness of this Court to sustain such a claim is shown in
Harriman v. Interstate Commerce Commission, 211 U.
S. 407, and as to correspondence, even in the case of a
common carrier, in
United States v. Louisville & Nashville
R. Co., 236 U. S. 318,
236 U. S. 335.
The question is a different one where the state granting the
charter gives its Commission power to inspect.
The right of access given by the statute is to documentary
evidence -- not to all documents, but to such documents as are
evidence. The analogies of the law do not allow the party wanting
evidence to call for all documents in order to see if they do not
contain it. Some ground must be shown for supposing that the
documents called for do contain it. Formerly, in equity, the ground
must be found in admissions in the answer. Wigram, Discovery (2d
ed.) § 293. We assume that the rule to be applied here is more
liberal, but still a ground must be laid, and the ground and the
demand must be reasonable.
Essgee Co. v. United States,
262 U. S. 151,
262 U. S.
156-157. A general subpoena in the form of these
petitions would be bad. Some evidence of the materiality of the
papers demanded must be produced.
Hale v. Henkel,
201 U. S. 43,
201 U. S. 77. In
the
Page 264 U. S. 307
state case relied on by the government, the requirement was only
to produce books and papers that were relevant to the inquiry.
Consolidated Rendering Co. v. Vermont, 207 U.
S. 541. The form of the subpoena was not the question in
Wheeler v. United States, 226 U.
S. 478,
226 U. S.
488.
The demand was not only general, but extended to the records and
correspondence concerning business done wholly within the state.
This is made a distinct ground of objection. We assume for present
purposes that even some part of the presumably large mass of papers
relating only to intrastate business may be so connected with
charges of unfair competition in interstate matters as to be
relevant,
Stafford v. Wallace, 258 U.
S. 495,
258 U. S.
520-521, but that possibility does not warrant a demand
for the whole. For all that appears, the corporations would have
been willing to produce such papers as they conceived to be
relevant to the matter in hand.
See Terminal Taxicab Co. v.
District of Columbia, 241 U. S. 252,
241 U. S. 256.
If their judgment upon that matter was not final, at least some
evidence must be offered to show that it was wrong. No such
evidence is shown.
We have considered this case on the general claim of authority
put forward by the Commission. The argument for the government
attaches some force to the investigations and proceedings upon
which the Commission had entered. The investigations and complaints
seem to have been only on hearsay or suspicion, but even if they
were induced by substantial evidence under oath, the rudimentary
principles of justice that we have laid down would apply. We cannot
attribute 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.
United States v. Delaware & Hudson
Co., 213 U. S. 366,
213 U. S. 408.
United States v. Jin Fuey Moy, 241 U.
S. 394.
Judgment affirmed.