MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.
Petitioner was tried on charges of having made tie-in sales in violation of regulations under the Emergency Price Control Act.
The petitioner, a wholesaler of fruit and produce, on September 29, 1944, was served with a subpoena duces tecum and ad testificandum, issued by the Price Administrator under authority of the Emergency Price Control Act. The subpoena directed petitioner to appear before designated enforcement attorneys of the Office of Price Administration and to produce "all duplicate sales invoices, sales books, ledgers, inventory records, contracts and records relating to the sale of all commodities from September 1, 1944 to September 28, 1944." In compliance with the subpoena, petitioner appeared and, after being sworn, was requested to turn over the subpoenaed records. Petitioner's counsel inquired whether petitioner was being granted immunity "as to any and all matters for information obtained as a result of the investigation and examination of these records." The presiding official stated that the "witness is entitled to whatever immunity which flows as a matter of law from the production of these books and records which are required to be kept
The plea in bar alleged that the name of the purchaser in the transactions involved in the information appeared in the subpoenaed sales invoices and other similar documents. And it was alleged that the Office of Price Administration had used the name and other unspecified leads obtained from these documents to search out evidence of the violations, which had occurred in the preceding year.
The Circuit Court of Appeals ruled that the records which petitioner was compelled to produce were records required to be kept by a valid regulation under the Price Control Act; that thereby they became public documents, as to which no constitutional privilege against self-incrimination attaches; that accordingly the immunity of § 202 (g) did not extend to the production of these records and the plea in bar was properly overruled by the trial court. 159 F.2d 890.
It should be observed at the outset that the decision in the instant case turns on the construction of a compulsory
The legislative history of § 202 casts even stronger light on the meaning of the words used in that section. On July 30, 1941, the President of the United States, in a message to Congress, requested price-control legislation conferring effective authority to curb evasion and bootlegging.
As introduced, and as reported out of the Committee on November 7, 1941, the bill included broad investigatory, record-keeping, licensing, and other enforcement powers to be exercised by the Administrator.
It is significant to note that the Senate Committee on Banking and Currency began its consideration of the
Emphasis was placed on the restoration of licensing provisions, which the House had deleted from the Price Control Bill as originally drafted. The General Counsel for the OPA contended that licensing was the backbone of enforcement of price schedules and regulations.
With this background,
It is difficult to believe that Congress, whose attention was invited by the proponents of the Price Control Act to the vital importance of the licensing, record-keeping and inspection provisions in aiding effective enforcement of the Lever Act, could possibly have intended § 202 (g) to proffer a "gratuity to crime" by granting immunity to custodians of non-privileged records. Nor is it easy to conceive that Congress could have intended private privilege to attach to records whose keeping it authorized the Administrator to require on the express supposition that it was thereby inserting "teeth" into the Price Control Act since the Administrator, by the use of such records, could readily discover violations, check on compliance, and prevent violations from being committed "with impunity."
In conformance with these views, the bill as passed by Congress empowered the Administrator to require the making and keeping of records by all persons subject to the statute, and to compel, by legal process, oral testimony of witnesses and the production of documents deemed necessary in the administration and enforcement of the statute and regulations. It also included the immunity proviso, subsection (g) of § 202, as to which no special attention seems to have been paid in the debates, although it was undoubtedly included, as it had been in other statutes, as a "usual administrative provision,"
Moreover, there is a presumption that Congress, in reenacting the immunity provision of the 1893 Act, was aware of the settled judicial construction of the statutory immunity. In adopting the language used in the earlier act, Congress "must be considered to have adopted also the construction given by this Court to such language, and made it a part of the enactment."
In the former case, Wilson, the president of a corporation, was required by subpoena to produce the corporate books in his custody before a grand jury. He appeared before the grand jury but refused to deliver up the records on the ground that their contents would tend to incriminate him, and claimed privilege under the Fifth Amendment. On review in this Court of the judgment committing him for contempt, Wilson based his defense in part on the theory that he would have been protected in his constitutional privilege against self-incrimination had he been sworn as a witness, and that the government's failure to permit him to be sworn could not deprive him of such protection.
As illustrations of documents meeting this "required records" test, the Court cited with approval state supreme court decisions that business records kept under requirement of law by private individuals in unincorporated enterprises were "`public documents, which the defendant was required to keep, not for his private uses, but for the benefit of the public, and for public
In the Heike case, this Court, per Holmes, J., laid down a standard for the construction of statutory immunity provisos which clearly requires affirmance of the decision of the circuit court here: ". . . the obvious purpose of the statute is to make evidence available and compulsory that otherwise could not be got. We see no reason for supposing that the act offered a gratuity to crime. It should be construed, so far as its words fairly allow the construction, as coterminous with what otherwise would have been the privilege of the person concerned."
The traditional rule that re-enactment of a statute creates a presumption of legislative adoption of previous judicial construction may properly be applied here, since the Court in Heike regarded the 1903 immunity statute there construed as identical, in policy and in the scope of immunity furnished, with the Compulsory Testimony Act of 1893, which has been re-enacted by incorporation into the Price Control Act.
In addition, scrutiny of the precise wording of § 202 (g) of the latter statute indicates that the draftsmen of that section went to some pains to ensure that the immunity provided for would be construed by the courts as being so limited. The construction adopted in the Heike decision was rendered somewhat difficult because neither the Compulsory Testimony Act of 1893 nor the immunity proviso in the 1903 Act made any explicit reference to the constitutional privilege against self-incrimination, with whose scope the Court nonetheless held the immunity to be coterminous. Section 202 (g), on the other hand, follows a pattern set by the Securities Act of 1933 and expressly refers to that privilege, thus apparently seeking to make it doubly certain that the courts would construe the immunity there granted as no broader than the privilege:
A comparison of the precise wording of § 202 (g) with the wording of immunity provisions contained in earlier
Petitioner does not deny that the actual existence of a genuine privilege against self-incrimination is an absolute prerequisite for the attainment of immunity under § 202 (g) by a corporate officer who has been compelled by subpoena to produce required records; and that, under the Heike ruling, the assertion of a claim to such a privilege in connection with records which are in fact non-privileged is unavailing to secure immunity, where the claimant is a corporate officer. But, while conceding that the statute should be so construed where corporate officials are concerned, the petitioner necessarily attributes to Congress the paradoxical intention of awarding immunity in exchange for a claim of privilege as to records of a claimant engaged in non-corporate business, though his business is similarly subjected to governmental price control, and its required records are, under the Wilson rationale, similarly non-privileged.
The implausibility of any such interpretation of congressional intent is highlighted by the unquestioned fact that Congress provided for price regulations enforcible against unincorporated entrepreneurs as well as corporate industry. It is also unquestionable that Congress, to ensure that violations of the statute should not go unpunished, required records to be kept of all relevant buying and selling transactions by all individual and corporate business subject to the statute. If these aspects of congressional
It is contended that to construe the immunity proviso as we have here is to devitalize, if not render meaningless, the phrase "any requirements"
If the contention advanced against our interpretation be valid, the Court must have erred in its construction of the immunity proviso in the Heike case. For the 1893 Act, 49 U.S.C. § 46, which it was in effect construing, provides that, "No person shall be excused
Actually, neither the interpretation as applied in the Heike decision nor as expounded here renders meaningless any of the words in the immunity provision. In each case, the immunity proviso is set forth in conjunction with record-keeping requirements. And in each case, where the immunity provided concerns documents whose production might otherwise be excused on the ground of
As a final answer, an understanding of the 1893 immunity provision, based on its full historical context, should suffice to explain the limited function contemplated by Congress in incorporating that provision into the 1942 statute. The 1893 provision was enacted merely to provide an immunity sufficiently broad to be an adequate
The suggestion has been advanced that the scope of the immunity intended by Congress should be ascertained, not by reference to the judicial and legislative history considered above, but by reference to the principle expounded in Federal Trade Comm'n v. American Tobacco Co., 264 U.S. 298, 307 (1924), of construing a broad grant of statutory authority so as to avoid attributing 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."
It is interesting to note that Congress, in enacting the Price Control Bill, apparently did intend to rely upon the principle of American Tobacco in circumstances similar to those in which that principle was originally applied: namely, to insure that the power of inspection or examination would not conflict with the prohibition against unreasonable searches and seizures contained in the Fourth Amendment. Senator Brown, who was chairman of the sub-committee on the Price Control Bill and one of the managers on the part of the Senate
It was the abuse of the subpoena power to obtain irrelevant data in the course of a "fishing expedition" with which the Court was concerned in that case. It is clear that if the Administrator sought to obtain data irrelevant to the effective administration of the statute and if his right of access was challenged on the ground that the evidence sought was "plainly incompetent or irrelevant to any lawful purpose"
Even if the evidence of congressional intent contained in the legislative history were less clear-cut and persuasive, and constitutional doubts more serious than they appear to us, we would still be unconvinced as to the applicability of the American Tobacco standard to the construction of the immunity proviso in relation to documentary evidence which is clearly and undeniably relevant, and the recording and keeping of which the Administrator has properly required in advance. For, in construing statutory immunities in such circumstances, we must heed the equally well-settled doctrine of this Court to read a statute, assuming that it is susceptible of either of two opposed interpretations, in the manner which effectuates rather than frustrates the major purpose of the legislative draftsmen. The canon of avoidance of constitutional doubts must, like the "plain meaning" rule, give way where its application would produce a futile result, or an unreasonable result "plainly at variance with the policy of the legislation as a whole."
There remains for consideration only the question as to whether serious doubts of constitutionality are raised if the Price Control Act is thus construed. This issue was not duly raised by petitioner, and it becomes relevant, if at all, only because such doubts are now said to be prdsent if the immunity proviso is interpreted as set forth above.
It may be assumed at the outset that there are limits which the Government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency and may be used in prosecuting statutory violations committed by the record-keeper himself. But no serious misgiving that those bounds have been overstepped would appear to be evoked when there is a sufficient relation between the activity sought to be regulated and the public concern so that the Government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection by the Administrator. It is not questioned here that Congress has constitutional authority to prescribe commodity prices as a war emergency measure, and that the licensing and record-keeping requirements of the Price Control Act represent a legitimate exercise of that power.
In the view that we have taken of the case, we find it unnecessary to consider the additional contention by the Government that, in any event, no immunity attaches to the production of the books by the petitioner because the
For the foregoing reasons, the judgment of the Circuit Court of Appeals is
Affirmed.
MR. JUSTICE FRANKFURTER, dissenting.
The Court this day decides that when Congress prescribes for a limited Governmental purpose, enforceable by appropriate sanctions, the form in which some records are to be kept, not by corporations but by private individuals, in what in everyday language is a private and not a Governmental business, Congress thereby takes such records out of the protection of the Constitution against self-incrimination and search and seizure. Decision of constitutional issues is at times unavoidable. But in this case the Court so decides when it is not necessary. The Court makes a drastic break with the past in disregard of the settled principle of constitutional adjudication not to pass on a constitutional issue — and here a grave one involving basic civil liberties — if a construction that does no violence to the English language permits its avoidance. This statute clearly permits it.
In reaching out for a constitutional adjudication, especially one of such moment, when a statutory solution avoiding it lay ready at hand, the Court has disregarded its constantly professed principle for the proper approach toward congressional legislation. "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Crowell v. Benson, 285 U.S. 22, 62, quoted by Mr. Justice Brandeis with supporting citations in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, n. 8. And see, generally, for duty to avoid constitutional adjudication, Rescue Army v. Municipal Court, 331 U.S. 549, 568 et seq.
Departure from a basic canon of constitutional adjudication is singularly uncalled for in a case such as this, where the statute not only permits a construction avoiding constitutional considerations but on fair reading requires it.
In conferring powers of investigation upon the Administrator, Congress designed to secure the promptest disclosure
It is a poor answer to say that if the statute were eventually found to confer immunity only to the extent required for supplying an equivalent for the constitutional privilege, all records would turn out to be unprivileged or would furnish immunity, and in either case refute any excuse for withholding them. Businessmen are not guided by such abstractions. Obedience is not freely given to uncertain laws when they involve such sensitive matters as opening the books of business. And so, businessmen would have had a strong incentive to hold back their records, forcing the Administrator to compel production by judicial process. Apart from the use of opportunities for obstructive tactics that can hardly be circumvented when new legislation is tested, delays inevitable to litigation would dam up the flow of needed information. Congress sought to produce information, not litigation. See United States v. Monia, supra, at p. 428.
In the Monia case the Court considered that the statute, "if interpreted as the Government now desires, may well be a trap for the witness." Id. at 430. We need not speculate here as to potential entrapment. The record discloses that the petitioner asked, through his attorney, whether he was "being granted immunity as to any and all matters for information obtained as a result of the investigation and examination of these records." On behalf
There is nothing to indicate that in 1942 Congress legislated with a view to litigating the scope of the limitation of the Fifth Amendment upon its powers. To ascertain what Congress meant by § 202 (g) we would do well to begin by carefully attending to what Congress said:
The text must be put into its context, not merely because one provision of a statute should normally be read in relation to its fellows, but particularly so here because Congress explicitly linked subsection (g) of § 202 to "any requirements under this section." Effective price control depended on unimpeded access to relevant information. To that end, § 202 authorized the Administrator to impose the "requirements" of the section, and those from whom
The Court supports this devitalization with the "short answer" that the immunity provided does cover compliance with any of these requirements as to which a person would have been excused from compliance because of his constitutional privilege. The short reply is that, bearing in mind the Court's conclusions as to the scope of the constitutional privilege, only the fourth requirement appears to be thus covered. I do not wish to lay too much stress on the Court's singular interpretation of the plural "requirements." Plainly, the Court construes § 202 (g) as according immunity only to oral testimony under oath and to the production of any documents which the Administrator did not have the foresight to require to be kept.
The Court thus construes the words "complying with any requirements under this section" to read "appearing and testifying or producing documents other than those required to be kept pursuant to this section." Construction,
Both logic and authority, apart from due regard for our limited function, demonstrate the wisdom of respecting the text. The reach of the immunity given by § 202 (g) is spelled out in the incorporated terms of the Compulsory Testimony Act of 1893. These provide that where, as here, documentary evidence is exacted which may tend to incriminate, he who produces it shall not "be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise. . . ." 27 Stat. 443, 49 U.S.C. § 46. There is of course nothing in this provision to support the finespun exegesis which the Court puts upon § 202 (g). The Government admits as much by acknowledging that "the literal language of the Compulsory Testimony Act possibly may be so read" as to support the present claim of immunity. But it urges that nothing
The language yields no support for the Government's sophisticated reading adopted by the Court. Nor is there anything in the legislative history to transmute the clear import of § 202 into esoteric significance. So far as it bears upon our problem, the legislative history of the Act merely shows that § 202 in its entirety was included for the purpose of "obtaining information."
But the Court reads into § 202 (g) the meaning that "they" put upon the record-keeping provisions that Congress thus reinserted into the bill. "They," the "general Counsel for the OPA," appeared and testified orally at the Senate Hearings
To attribute to Congress familiarity with, let alone acceptance of, a construction solely by reason of the fact that our research reveals its presence among the 60,000-word memoranda which the Chairman of the Senate Committee permitted the General Counsel of the O.P.A. to file, is surely to defy the actualities of the legislative process. Is there the slenderest ground for assuming that members of the Committee read counsel's submission now relied upon by the Court? There is not a reference to the contentions of the O.P.A., wholly apart from that brief, in any report of a committee of either House or in any utterance on the floor of either House.
We agree with the Government that Congress gave the Administrator broad powers for obtaining information as an aid to the administration and enforcement
Plainly, it would have sufficed to dispose of the present controversy by holding that Congress granted immunity by § 202 (g) to persons who produced their own records, as were the records in this case, and not in their possession as custodians of others, even though required to be kept by § 202. To adapt the language of Mr. Justice Holmes, words have been strained by the Court more than they
And so we come to the Court's facile treatment of the grave constitutional question brought into issue by its disposition of the statutory question. In the interest of clarity it is appropriate to note that the basic constitutional question concerns the scope of the Fifth Amendment, not the validity of the Price Control Act. The Court has construed the immunity afforded by § 202 (g) of the Act as co-extensive with the scope of the constitutional privilege against self-incrimination. Thus construed, the subsection is of course valid, since, by hypothesis, it affords a protection as broad as the Fifth Amendment. Counselman v. Hitchcock, 142 U.S. 547; Brown v. Walker, 161 U.S. 591. The vice of this construction — and the importance of the point warrants its reiteration — is precisely that it necessitates interpretation of the Constitution instead of avoiding it.
The Court hardly finds a problem in disposing of an issue far-reaching in its implications, involving as they do a drastic change in the relations between the individual and the Government as hitherto conceived. The Court treats the problem as though it were almost self-evident that when records are required to be kept for some needs of Government, or to be kept in a particular form, they are legally considered governmental records and may be demanded as instruments of self-crimination.
Ready-made catch-phrases may conceal but do not solve serious constitutional problems. "Too broadly generalized
If records merely because required to be kept by law ipso facto become public records, we are indeed living in glass houses. Virtually every major public law enactment — to say nothing of State and local legislation — has record-keeping provisions. In addition to record-keeping requirements, is the network of provisions for filing reports. Exhaustive efforts would be needed to track down all the statutory authority, let alone the administrative regulations, for record-keeping and reporting requirements. Unquestionably they are enormous in volume.
The Congress began its history with such legislation. Chapter I of the Laws of the First Session of the First Congress — "An Act to regulate the Time and Manner of administering certain Oaths" — contained a provision requiring the maintenance of records by persons administering oaths to State officials. 1 Stat. 23, 24. Chapter V — "An Act to regulate the Collection of the Duties imposed by law on the tonnage of ships or vessels, and on goods, wares and merchandise imported into the United States" — contained a provision requiring an importer to produce the original invoice and to make a return concerning the consigned goods with the collector of the port of arrival. 1 Stat. 29, 39-40.
Every Congress since 1789 has added record-keeping and reporting requirements. Indeed, it was the plethora
I do not intend by the above exposition to cast any doubt upon the constitutionality of the record-keeping or reporting provisions of the Emergency Price Control Act or, in general, upon the vast number of similar statutory requirements. Such provisions serve important and often indispensable purposes. But today's decision can hardly fail to hamper those who make and those who execute the laws in securing the information and data necessary for the most effective and intelligent conduct of Government.
The underlying assumption of the Court's opinion is that all records which Congress in the exercise of its constitutional powers may require individuals to keep in the conduct of their affairs, because those affairs also have aspects of public interest, become "public" records in the sense that they fall outside the constitutional protection of the Fifth Amendment. The validity of such a doctrine lies in the scope of its implications. The claim touches records that may be required to be kept by federal
If the records in controversy here are in fact public, in the sense of publicly owned, or governmental, records, their non-privileged status follows. See Davis v. United States, 328 U.S. 582, 594, 602 (dissenting opinion). No one has a private right to keep for his own use the contents of such records. But the notion that whenever Congress requires an individual to keep in a particular form his own books dealing with his own affairs his records cease to be his when he is accused of crime, is indeed startling.
A public record is a public record. If the documents in controversy are "public records" and as such non-privileged in a prosecution under the Price Control Act, why are they not similarly public and non-privileged in any sort of legal action? There is nothing in either the Act or the Court's construction of it to qualify their "public" nature. Is there any maintainable reason why the Fifth Amendment should be a barrier to their utilization in a prosecution under any other law if it is no barrier here? These records were, as a matter of fact, required to be kept (and hence "public") quite apart from this Act. See Int. Rev. Code § 54 (a) and Treas. Reg. 111, § 29.54-1. If an examination of the records of an individual engaged in the processing and sale of essential commodities should disclose non-essential production, for example, why cannot the records be utilized in prosecutions for violations of the priorities or selective service legislation? Cf. Harris v. United States, 331 U.S. 145; but cf. Trupiano v. United States, 334 U.S. 699.
Moreover, the Government should be able to enter a man's home to examine or seize such public records, with
Indeed, if these records are public, I can see no reason why the public should not have the same right that the Government has to peruse, if not to use, them. For, public records are "of a public character, kept for public purposes, and so immediately before the eyes of the community that inaccuracies, if they should exist, could hardly escape exposure." Evanston v. Gunn, 99 U.S. 660, 666. It would seem to follow, therefore, that these public records of persons engaged in what to the common understanding is deemed private enterprise should be generally available for examination and not barred by the plea that the enterprise would thereby cease to be private.
Congress was guilty, perhaps, of no more than curious inconsistency when it provided in § 202 (h) of the Act for the confidential treatment of these "public" records.
The fact of the matter, then, is that records required to be kept by law are not necessarily public in any except a word-playing sense. To determine whether such records are truly public records, i.e., are denuded of their essentially private significances, we have to take into account their custody, their subject matter, and the use sought to be made of them.
It is the part of wisdom, particularly for judges, not to be victimized by words. Records may be public records regardless of whether "a statute requires them to be kept," if "they are kept in the discharge of a public duty" either by a public officer or by persons acting under his direction. Evanston v. Gunn, supra. Chapter I of the first statute passed by Congress, supra, is an example of an act requiring a public record to be kept.
Records do not become public records, however, merely because they are required to be kept by law. Private records under such circumstances continue to be private records. Chapter V of the Acts of the First Congress, supra, is an example of such a private record required to be kept by law.
Is there, then, any foundation for the Court's assumption that all records required to be kept by law are public and not privileged? Reliance is placed on language in Wilson v. United States, 221 U.S. 361. The holding in that case has no real bearing on our problem. Wilson, the president of a corporation, in answer to a subpoena
The Wilson case was correctly decided. The Court's holding boiled down to the proposition that "what's not yours is not yours." It gives no sanction for the bold proposition that Congress can legislate private papers in the hands of their owner, and not in the hands of a custodian, out of the protection afforded by the Fifth Amendment. Even if there were language in the Wilson opinion in that direction, an observation taken from its context would seem to be scant justification for resolving, and needlessly, "a very grave question of constitutional law, involving the personal security, and privileges and immunities of the citizen." Boyd v. United States, 116 U.S. 616, 618.
The conclusion reached today that all records required to be kept by law are public records cannot lean on the Wilson opinion. This is the language relied upon by the Court:
But Mr. Justice Hughes, the writer of the Wilson opinion, went on to note that "There are abundant illustrations in the decisions" of this principle that a custodian has no privilege as to the documents in his custody just as no one has a privilege as to public or official records because they are not his private papers. He resorted
The illustrations utilized by Mr. Justice Hughes to meet this challenge raised by the dissent stand for the propositions that (a) a custodian has no privilege, and (b) public documents and records are non-privileged, but not at all on any notion that private records required to be kept by law are "public" records. Before analyzing the eleven precedents or illustrations thus employed, it is worthy of note that the illustrations were derived from the Government's brief. It is significant that that brief, by Solicitor General Frederick W. Lehmann, well-known for his learning, contained no reference to the "required records" doctrine. On the contrary the Government cited these cases to support its argument that: "The immunity granted by the Constitution is purely personal."
These are the "illustrations in the decisions":
(1) Bredshaw v. Murphy, 7 C. & P. 612, where "it was held that a vestry clerk who was called as a witness could not on the ground that it might incriminate himself object to the production of the vestry books kept under the statute, 58 George III, chapter 69, § 2." (221 U.S. at 380.)
(2) State v. Farnum, 73 S.C. 165, where it was held that the dispenser of the State Dispensary had to disclose to a legislative committee the official books of that State institution.
Comment. — Under South Carolina law the dispenser was an officer of the State; the books were true public records; he was their custodian.
(3) State v. Donovan, 10 N.D. 203, where it was held that a register of sales of intoxicating liquor kept by a druggist pursuant to a statute providing that such record "shall be open for the inspection of the public at all reasonable times during business hours, and any person so desiring may take memoranda or copies thereof" was a public record.
Comment. — The State court construed the statute to make the druggist a public officer and, as such, the custodian of the register for the State. The court quoted authority to the effect that the register was "the property of the state, and not of the citizen, and is in no sense a private memorandum." 10 N.D. at 209. Are we to infer from the Court's opinion in this case that the books and records petitioner customarily kept were not his property but that of the United States Government, and that they "shall be open for the inspection of the public at all reasonable times during business hours, and any person so desiring may take memoranda or copies thereof"? Ibid. and cf. Evanston v. Gunn, supra.
(4) State v. Davis, 108 Mo. 666, where it was held that a druggist had no privilege as to the prescriptions he filled for sales of intoxicating liquor.
(5) State v. Davis, 68 W.Va. 142 (prescription-keeping case virtually identical with State v. Davis, 108 Mo. 666).
(6) People v. Coombs, 158 N.Y. 532, where it was held that a coroner had no privilege as to official inquest records, required to be filed with the county clerk, over his contention that they were private records because they were false and had been found in his own office.
Comment. — "The papers were in a public office, in the custody of a clerk who was paid by the city. On their face they were public records and intended to be used as such." 158 N.Y. at 539.
(7) L. & N.R. Co. v. Commonwealth, 51 S.W. (Ky.) 167, where it was held that a railroad corporation had no privilege as to a tariff sheet.
Comment. — The tariff sheet was "required by law to be publicly posted at the station, and was in fact so posted." 51 S.W. at 167. Petitioner is not a railroad corporation and his records were not "publicly posted."
(8) State v. Smith, 74 Iowa 580, where it was held that a pharmacist had no privilege as to the monthly reports of liquor sales that he had made to the county auditor pursuant to a statutory reporting requirement.
Comment. — The reports in the auditor's office were "public records of the office, which are open to the inspection of all, and may be used in evidence in all cases between all parties, when competent, to establish any fact in issue for judicial determination." 74 Iowa at 583-84. Petitioner's records were in his possession and were not open for public inspection.
(10) People v. Henwood, 123 Mich. 317 (liquor sales reporting requirement held valid).
(11) Langdon v. People, 133 Ill. 382, held that seizure pursuant to search warrant of official State documents unlawfully in appellant's possession constituted reasonable search — "They were not private papers." 133 Ill. at 398.
In summary of the authorities cited as illustrations of the principle recognized and applied by the Court in the Wilson case, then, it should be obvious that they neither stand for the proposition that the fact that private records are required to be kept by statute makes them public records by operation of law, nor did Mr. Justice Hughes misconstrue them in reaching the decision in the Wilson case.
Were there any doubt as to the point of the illustrations in the Wilson case, surely we could safely permit that doubt to be resolved by the Wilson opinion itself. After reviewing the illustrative cases, Mr. Justice Hughes observed:
Evidently the dictum in the Wilson case and the authorities therein cited need to be bolstered for the use to which they are put in this case. We are told that "Other state supreme court decisions, subsequent to the
(1) Paladini v. Superior Court, 178 Cal. 369, where it was held that the statutory procedure whereby the State Market Director could compel the production of the sales records of licensed fish dealers was valid.
Comment. — The court did not hold that the records were "non-privileged," but disposed of the contention that the statute violated the constitutional privilege against self-incrimination on the ground that "The proceeding before the state market director is not criminal in its nature, and the order compelling the petitioners to produce their books before the state market director was not in violation of the constitutional provision which prohibits a court or officer from requiring a defendant in a criminal case to furnish evidence against himself." 178 Cal. at 373. The court did dispose of the contention that the statute violated the Fourth Amendment of the United States Constitution on the ground that the records were not private. But the records here were public records because, since it was conceded that the fish belonged to the State, "They contain a record of the purchase and sale of the property of the state, by those having a qualified or conditional interest therein." Ibid. There is no suggestion in this case that petitioner's records were public records because his fruit and vegetables were the property of the United States Government.
(2) St. Louis v. Baskovitz, 273 Mo. 543, where a municipal ordinance requiring junk dealers to keep books of registry recording their purchases and providing that the books be open for inspection and examination by the police or any citizen was upheld against the contention that it violated the State constitutional provision against unreasonable searches and seizures for private purposes.
(3) State v. Legora, 162 Tenn. 122, where a statute requiring junk dealers to keep a record of their purchases was upheld.
Comment. — A record which "shall at all times be open to the inspection of . . . any person who may desire to see the same," 162 Tenn. at 124, is, of course, a "public" record. Evanston v. Gunn, supra; cf. St. Louis v. Baskovitz, supra.
(4) State v. Stein, 215 Minn. 308, where a statute requiring licensed dealers in raw furs to keep records of their sales and purchases was upheld.
Comment. — The records here were public records for the same reason that the records involved in the Paladini case were public records — "the state is the owner, in trust for the people, of all wild animals." 215 Minn. at 311.
(5) Financial Aid Corporation v. Wallace, 216 Ind. 114, where a statute requiring licensed small loan concerns to keep records and providing for their inspection by the State Department of Financial Institutions was upheld.
Comment. — The court had no occasion to, and did not, go into the question as to whether the records were either "public" or "non-privileged."
It appears to me, therefore, that the authorities give no support to the broad proposition that because records are required to be kept by law they are public records and, hence, non-privileged. Private records do not thus
Different considerations control where the business of an enterprise is, as it were, the public's. Clearly the records of a business licensed to sell state-owned property are public records. Cf., e.g., Paladini v. Superior Court, supra; State v. Stein, supra. And the records of a public utility, apart from the considerations relevant to corporate enterprise, may similarly be treated as public records. Cf., e.g., L. & N.R. Co. v. Commonwealth, supra; Financial Aid Corporation v. Wallace, supra. This has been extended to the records of "occupations which are malum in se, or so closely allied thereto, as to endanger the public health, morals or safety." St. Louis v. Baskovitz, supra, at p. 554; cf., e.g., State v. Legora, supra; State v. Donovan, supra; State v. Smith, supra.
Here the subject matter of petitioner's business was not such as to render it public. Surely, there is nothing inherently dangerous, immoral, or unhealthy about the
And the Court quoted at length from Hale v. Henkel, 201 U.S. 43, 74-75:
The phrase "required to be kept by law," then, is not a magic phrase by which the legislature opens the door to inroads upon the Fifth Amendment. Statutory provisions similar to § 202 (b) of this Act, requiring the keeping of records and making them available for official inspection, are constitutional means for effective administration and enforcement.
The Court in the Boyd case was fully cognizant of the sense and significance of the phrase "books required by law to be kept for their inspection." Id. at 623-24. Surely the result of that decision, if not the opinion itself, speaks loudly against the claim that merely by virtue of a record-keeping provision the constitutional privilege against self-incrimination becomes inoperative. The document in controversy in the Boyd case was historically, and as a matter of fact, much more of a "required record" than the books and records the petitioner here "customarily
Violators should be detected, tried, convicted, and punished — but not at the cost of needlessly bringing into question constitutional rights and privileges. While law enforcement officers may find their duties more arduous and crime detection more difficult as society becomes more complicated, the constitutional safeguards of the
And so I conclude that the Court has misconstrued the Fifth Amendment by narrowing the range and scope of the protection it was intended to afford. The privilege against self-incrimination is, after all, "as broad as the mischief against which it seeks to guard." Counselman v. Hitchcock, supra, at p. 562. If Congress by the easy device of requiring a man to keep the private papers that he has customarily kept can render such papers "public" and non-privileged, there is little left to either the right of privacy or the constitutional privilege.
Even if there were authority for the temerarious pronouncement in today's opinion, I would insist that such authority was ill-founded and ought not to be followed. There is no such authority. The Court's opinion can gain no strength beyond itself. The persuasiveness of its opinion is not enhanced by the endeavor of the majority of the Court, so needlessly reaching out for a constitutional issue, to rest its ominous inroads upon the Fifth Amendment not on the wisdom of their determination but on blind reliance upon non-persuasive authority.
MR. JUSTICE JACKSON, with whom MR. JUSTICE MURPHY agrees, dissenting.
The protection against compulsory self-incrimination, guaranteed by the Fifth Amendment, is nullified to whatever extent this Court holds that Congress may require a citizen to keep an account of his deeds and misdeeds and turn over or exhibit the record on demand of government inspectors, who then can use it to convict him. Today's decision introduces a principle of considerable moment. Of course, it strips of protection only business men and their records; but we cannot too often remind ourselves of the tendency of such a principle, once approved, to expand itself in practice "to the limits of its logic." That it has already expanded to cover a vast
The practice approved today obviously narrows the protections of the Fifth Amendment. We should not attribute to Congress such a purpose or intent unless it used language so mandatory and unmistakable that it left no alternative, and certainly should not base that inference on "legislative history" of such dubious meaning as exists in this case. Congress, if we give its language plain and usual meaning, has guarded the immunity so scrupulously as to raise no constitutional question. But if Congress had overstepped, we should have no hesitation in holding that the Government must lose some cases rather than the people lose their immunities from compulsory self-incrimination. However, in this case, the plain language of Congress requires no such choice. It does require, in my view, that this judgment be reversed.
MR. JUSTICE RUTLEDGE, dissenting.
With reservations to be noted, I agree with the views expressed by MR. JUSTICE JACKSON, and with MR. JUSTICE FRANKFURTER'S conclusions concerning the effect of the immunity provision, § 202 (g) of the Emergency Price Control Act.
That wording compels testimony and the production of evidence, documentary or otherwise, regardless of any claim of constitutional immunity, whether valid or not.
The statute thus consists of a command and a promise. In explicit terms the promise is made coextensive with the command. It expressly precludes prosecution, forfeiture or penalty "for or on account of any transaction, matter or thing" concerning which evidence is produced in compliance with the subpoena.
It may be, however, notwithstanding the breadth of the promissory terms, that the statutory immunity was not intended to be so broad as to cover situations where the claim of constitutional right precluded is only frivolous or insubstantial or not put forward in good faith.
Whether one or the other of the two broader views of the statute's effect is accepted, therefore, it is neither necessary nor, I think, reasonable or consistent with the statutory wording and object or with this Court's function as strictly a judicial body to go so far in reconstructing what Congress has done, as I think results from reducing the statutory immunity to equivalence with the constitutional one.
In this view I am relieved of the necessity of reaching the constitutional issue resulting from the Court's construction, and I express no opinion upon it except to say that I have substantial doubt of the validity of the Court's conclusion and indicate some of the reasons for this. I have none that Congress itself may require the keeping and production of specified records, with appropriate limitations, in connection with business matters it is entitled to and does regulate. That is true not only of corporate records, Wilson v. United States, 221 U.S. 361, but also of individual business records under appropriate specification and limitations, as the numerous instances cited in MR. JUSTICE FRANKFURTER'S opinion illustrate.
But I seriously doubt that, consistently with the Fourth Amendment, as well as the prohibition of the Fifth against compulsory self-incrimination, Congress could enact a general law requiring all persons, individual or corporate, engaged in business subject to congressional regulation to produce, either in evidence or for an administrative agency's or official's examination, any and all records, without other limitation, kept in connection with that business. Such a command would approach too closely in effect the kind of general warrant the Fourth Amendment outlawed. That would be even more obviously true, if there were any difference, in case Congress
The authority here conferred upon the Administrator by the Emergency Price Control Act, in reference to record-keeping and requiring production of records, closely approaches such a command. Congress neither itself specifies the records to be kept and produced upon the Administrator's demand nor limits his power to designate them by any restriction other than that he may require such as "he deems necessary or proper to assist him," § 202 (a), (b), (c), in carrying out his functions of investigation and prescribing regulations under, as well as of administration and enforcement of, the Act. And as the authority to specify records for keeping and production was carried out by the Administrator, the only limitation imposed was that the records should be such as had been "customarily kept." § 14 (b), M.P.R. 426, 8 Fed. Reg. 9546, 9549. Such a restriction is little, if any, less broad than the one concerning which I have indicated doubt that Congress itself could enact consistently with the Fourth Amendment.
The authorization therefore is one which raises serious question whether, by reason of failure to make more definite specification of the records to be kept and produced, the legislation and regulations involved here do not exceed the prohibition of the Fourth Amendment against general warrants and unreasonable searches and seizures. There is a difference, of course, and often a large one, between situations where evidence is searched out and seized without warrant, and others where it is required to be produced under judicial safeguards. But I do not understand that in the latter situation its production can be required under a warrant that amounts to a general one. The Fourth Amendment stands as a barrier to judicial and legislative as well as executive or administrative excesses in this respect.
FootNotes
The Compulsory Testimony Act of 1893 provides: "No person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agreements and documents before the Interstate Commerce Commission, or in obedience to the subpoena of the Commission . . . on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subject to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said Commission, or in obedience to its subpoena. . . ."
"Records. (a) Every person subject to this regulation shall, so long as the Emergency Price Control Act of 1942, as amended, remains in effect, preserve for examination by the Office of Price Administration all his records, including invoices, sales tickets, cash receipts, or other written evidences of sale or delivery which relate to the prices charged pursuant to the provisions of this regulation.
"(b) Every person subject to this regulation shall keep and make available for examination by the Office of Price Administration for so long as the Emergency Price Control Act of 1942, as amended, remains in effect, records of the same kind as he has customarily kept, relating to the prices which he charges for fresh fruits and vegetables after the effective date of this regulation and in addition as precisely as possible, the basis upon which he determined maximum prices for these commodities."
Shipping Act, 1916 [46 U.S.C. §§ 826, 827, 814, 817, 820].
Packers and Stockyards Act, 1921 [7 U.S.C. §§ 221, 222].
Commodity Exchange Act of 1922 [7 U.S.C. §§ 15, 6, 7a].
Perishable Agricultural Commodities Act, 1930 [7 U.S.C. § 499m, 499i].
Communications Act of 1934 [47 U.S.C. §§ 409, 203, 211, 213 (f), 220, 412].
Securities Exchange Act of 1934 [15 U.S.C. §§ 78q, 78u].
Federal Alcohol Administration Act, 1935 [27 U.S.C. §§ 202 (c), 204 (d); 26 U.S.C. § 2857; 15 U.S.C. §§ 49, 50].
Federal Power Act, 1935 [16 U.S.C. §§ 825 (a), 825f (g)].
Industrial Alcohol Act of 1935 [26 U.S.C. §§ 3119, 3121 (c)].
Motor Carrier Act of 1935 [49 U.S.C. §§ 305 (d), 304 (a) (1), 311 (d), 317, 318, 320, 322 (g)].
National Labor Relations Act, 1935 [29 U.S.C. §§ 156, 161].
Social Security Act, 1935 [42 U.S.C. § 405 (a), (d), (e), (f)].
Merchant Marine Act, 1936 [46 U.S.C. §§ 1124, 1211, 1114 (b)].
Bituminous Coal Act of 1937 [15 U.S.C. (1940 ed.) §§ 838, 833 (a),
(e), (k), 840 (terminated, as provided in § 849)].
Civil Aeronautics Act of 1938 [49 U.S.C. §§ 644, 483, 487, 492, 622 (e) and (g), 673].
Fair Labor Standards Act of 1938 [29 U.S.C. §§ 209, 211; 15 U.S.C. §§ 49, 50].
Natural Gas Act, 1938 [15 U.S.C. § 717a, g, m].
Railroad Unemployment Insurance Act, 1938 [45 U.S.C. §§ 362 (a), (b), (c), (l), 359].
Water Carriers Act of 1940 [49 U.S.C. §§ 916, 906, 913, 917 (d)].
Freight Forwarders Act, 1942 [49 U.S.C. §§ 1017 (a), (b), (d), 1005, 1012, 1021 (d)].
In addition to the Price Control Act, the other major regulatory statutes enacted in response to the recent wartime exigencies also contain these provisions:
Second War Powers Act [50 U.S.C. App. §§ 633, subsecs. 2 (a) (3), (4)].
Stabilization Act of 1942 [50 U.S.C. App. §§ 967 (b), 962].
War and Defense Contract Acts [50 U.S.C. App. § 1152 (a) (3), (4)].
War Labor Disputes Act [50 U.S.C. App. § 1507 (a) (3), (b)].
Very recent regulatory statutes, whose construction may also be affected or determined by the ruling of the Court in the present case, include:
Atomic Energy Act of 1946 [42 U.S.C. §§ 1812 (a) (3), 1810 (c)].
Labor Management Relations Act of 1947, § 101, subsecs. 11, 6; § 207 (c), 61 Stat. 136, 150, 140, 155.
"Faced now with the prospect of inflationary price advances, legislative action can no longer prudently be postponed. Our national safety demands that we take steps at once to extend, clarify, and strengthen the authority of the Government to act in the interest of the general welfare." H. Doc. No. 332, 77th Cong., 1st Sess. 3 (1941).
The full text of § 202 as enacted is as follows:
"(a) The Administrator is authorized to make such studies and investigations, to conduct such hearings, and to obtain such information as he deems necessary or proper to assist him in prescribing any regulation or order under this Act, or in the administration and enforcement of this Act and regulations, orders, and price schedules thereunder.
"(b) The Administrator is further authorized, by regulation or order, to require any person who is engaged in the business of dealing with any commodity, or who rents or offers for rent or acts as broker or agent for the rental of any housing accommodations, to furnish any such information under oath or affirmation or otherwise, to make and keep records and other documents, and to make reports, and he may require any such person to permit the inspection and copying of records and other documents, the inspection of inventories, and the inspection of defense-area housing accommodations. The Administrator may administer oaths and affirmations and may, whenever necessary, by subpena require any such person to appear and testify or to appear and produce documents, or both, at any designated place.
"(c) For the purpose of obtaining any information under subsection (a), the Administrator may by subpena require any other person to appear and testify or to appear and produce documents, or both, at any designated place.
"(d) The production of a person's documents at any place other than his place of business shall not be required under this section in any case in which, prior to the return date specified in the subpena issued with respect thereto, such person either has furnished the Administrator with a copy of such documents (certified by such person under oath to be a true and correct copy), or has entered into a stipulation with the Administrator as to the information contained in such documents.
"(e) In case of contumacy by, or refusal to obey a subpena served upon, any person referred to in subsection (c), the district court for any district in which such person is found or resides or transacts business, upon application by the Administrator, shall have jurisdiction to issue an order requiring such person to appear and give testimony or to appear and produce documents, or both; and any failure to obey such order of the court may be punished by such court as a contempt thereof. The provisions of this subsection shall also apply to any person referred to in subsection (b), and shall be in addition to the provisions of section 4 (a).
"(f) Witnesses subpenaed under this section shall be paid the same fees and mileage as are paid witnesses in the district courts of the United States.
"(g) No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 (U.S.C., 1934 edition, title 49, sec. 46), shall apply with respect to any individual who specifically claims such privilege.
"(h) The Administrator shall not publish or disclose any information obtained under this Act that such Administrator deems confidential or with reference to which a request for confidential treatment is made by the person furnishing such information, unless he determines that the withholding thereof is contrary to the interest of the national defense and security.
"(i) Any person subpenaed under this section shall have the right to make a record of his testimony and to be represented by counsel." 56 Stat. 23, 30, as amended by § 105 of the Stabilization Extension Act of 1944, 58 Stat. 632, 637, 50 U.S.C. § 922.
It is apparently conceded that the written statement presented to the Senate Committee by the General Counsel of the OPA in its hearings sets forth the construction that this Court sustains in affirming the judgment of the Circuit Court of Appeals for the Second Circuit in this case. We may accord to the construction expounded during the course of the hearings at least that weight which this Court has in the past given to the contemporaneous interpretation of an administrative agency affected by a statute, especially where it appears that the agency has actively sponsored the particular provisions which it interprets. And we may treat those contemporaneous expressions of opinion as "highly relevant and material evidence of the probable general understanding of the times and of the opinions of men who probably were active in the drafting of the statute. As such, they are entitled to serious consideration . . ." White v. Winchester Club, 315 U.S. 32, 41 (1942). See also United States v. American Trucking Assns., 310 U.S. 534, 549 (1940); Hassett v. Welch, 303 U.S. 303, 310-311 (1938).
The Report of the Senate Committee, following these hearings, recognized the key importance of licensing provisions for effective enforcement of the statute, noting that the "broad licensing power" which had been given to the Food Administrator under the Lever Act "was extensively and effectively used." The Report specifically referred also to the experience of the Fuel Administration, which at first lacked the power to license, then discovered the need for the power, and after acquiring it, secured "highly effective" enforcement results. The Report concluded that ". . . where there are many sellers, as in retailing, for example, it is impossible to determine who is subject to control, much less enforce price regulations, without licensing. Of these facts industry is fully aware. Licensing provides a simple and direct control over violators. . . ." S. Rep. No. 931, 77th Cong., 2d Sess. 8-9.
Speaking critically of the Conference Report, Representative Gifford, who was a Manager on the part of the House and had refused to sign the Report and the Statement by the Managers, desbribed licensing then in practice in Canada as a parallel to the licensing proposed by the amended Bill. He called the attention of the House to the Canadian statement of policy: "These restrictions are not designed to curtail business operations in any way. But by placing every person who in any way handles the commodities named in the order under license, the Board will have the machinery with which to make speedy checks on available stocks and to police more effectively any price-fixing order which may be instituted." 88 Cong. Rec. 672 (1942). (Rep. Gifford quoted the statement from "a compiled brief on the licensing methods;" it appears, together with other data referred to by Rep. Gifford, in the section on licensing methods in the brief presented during the Senate hearings by the General Counsel of the OPA, cited supra note 12, at p. 188.)
It is also of some interest to note the statement, contained in the Senate Report on the Bill, that a subcommittee which had been appointed immediately after the conclusion of the December 9-17 hearings "extensively revised and strengthened the House bill in the light of the hearings and the onslaught of war." S. Rep. No. 931, 77th Cong., 2d Sess. 6 (Jan. 2, 1942). We assume that this record of the Senate Committee proceedings merits the same presumption of regularity as the record of a county criminal court. Cf. Foster v. Illinois, 332 U.S. 134, 138 (1947).
". . . the transactions to which the required reports relate are corporate transactions subject to the regulating power of Congress. And, with regard to the keeping of suitable records of corporate administration, and the making of reports of corporate action, where these are ordered by the Commission under the authority of Congress, the officers of the corporation, by virtue of the assumption of their duties as such, are bound by the corporate obligation and cannot claim a personal privilege in hostility to the requirement." Baltimore & O.R. Co. v. I.C.C., 221 U.S. 612, 622-23 (1911).
Thus the significant element in determining the absence of constitutional privilege was the fact that the records in question had been validly required to be kept to enable the Commission "properly to perform its duty to enforce the law." Id. at 622. The fact that the individuals claiming the privilege were corporate officers was significant only in that the business transactions subject to the Interstate Commerce Act and the records required to be kept were corporate. And, as corporate officers, they were bound by the obligation imposed by the statute upon their corporation to keep the record. In other words, they were deemed custodians of the records for the Interstate Commerce Commission, not merely for the corporation. Had the transactions there regulated, and the records there required, concerned an unincorporated business, Justice Hughes' rationale sustaining the absence of constitutional privilege against self-incrimination would still apply with undiminished force.
This decision was cited with approval in United States v. Darby, 312 U.S. 100, 125 (1941), in support of the Court's holding that it is constitutional for Congress, as a means of enforcing the valid regulations imposed by the Fair Labor Standards Act, to require an employer to keep records of wages and hours of his employees. See note 42 infra.
The precise holding in Monia was that a witness before an investigatory body need not claim his privilege as a prerequisite to earning immunity under a pre-1933 statute which offered immunity without any reference to the need for making such a claim. The majority considered the Heike decision inapplicable to Monia because the relevant terms of the immunity proviso involved in the latter case were so plain and so sharply in contrast with the wording of the enactments after 1933, which (including the Price Control Act) expressly require the assertion of the claim, that Congress could not have intended the pre-1933 statute to require a witness to assert his claim. And it was emphasized that, to construe congressional intention otherwise in those circumstances, might well result in entrapment of witnesses as to testimony concededly privileged. We do not perceive such distinguishing factors in the case at bar, and accordingly consider the Heike rationale fully applicable here.
Compare the dictum in United States v. Mulligan, 268 F. 893 (N.D.N.Y. 1920), that records required to be kept by an unincorporated businessman under the Lever Act were not privileged, and that information contained therein was available for use in criminal prosecutions against the record-keeper himself. Like the Price Control Act, the Lever Act contained a compulsory testimony immunity provision. § 25, 40 Stat. 285. The memorandum filed with the Senate Committee, cited supra note 12, at 194, specifically referred to the "well-stated" opinion in the Mulligan case.
"Section 4 (c) affords protection to those persons required to disclose information to the Administrator by making it unlawful for any officer or employee of the Government, or for any adviser or consultant to the Administrator in his official capacity, to disclose or to use for his personal benefit, any information obtained under the bill. Further provision for confidential treatment of such information is found in section 202 (b) [changed in Conference to § 202 (h)]. . . . Section 202 (b) gives further protection to persons furnishing information to the Administrator under the bill by directing the Administrator, upon the request of the party furnishing such information, or if he deems such information confidential, not to disclose such information unless he deems that the public interest requires such disclosure." S. Rep. No. 931, 77th Cong., 2d Sess. 20-21.
This is substantially the same sort of confidential treatment provided for by the Hepburn Act of 1906, 34 Stat. 594, amending the Interstate Commerce Act: "Any examiner who divulges any fact or information which may come to his knowledge during the course of such examination, except in so far as he may be directed by the Commission or by a court or judge thereof, shall be subject, upon conviction in any court of the United States of competent jurisdiction, to a fine of not more than five thousand dollars or imprisonment for a term not exceeding two years, or both." 49 U.S.C. § 20 (7) (f). Numerous other statutes have incorporated almost identically worded provisions. See e.g., Motor Carrier Act of 1935, 49 U.S.C. § 322 (d).
In statutes such as these, where Congress validly distinguishes required records from private papers, with respect to the availability of the required documents as evidence in criminal or other proceedings to enforce the statute for whose effectuation they are kept, nothing in logic nor historical practice requires Congress at the same time to treat the records as public in the sense that they be open at all times to scrutiny by the merely curious. See Coleman v. United States, 153 F.2d 400, 402-04 (C.C.A. 6, 1946). Congress expressly foreclosed such a result in the Emergency Price Control Act, and this opinion neither requires nor permits it.
"A restrictive interpretation should not be given a statute merely because Congress has chosen to depart from custom or because giving effect to the express language employed by Congress might require a court to face a constitutional question." United States v. Sullivan, 332 U.S. 689, 693 (1948).
In Boyd v. United States, 116 U.S. 616 (1886), the Court held unconstitutional, as repugnant to the Fourth and Fifth Amendments, an 1874 revenue statute which required the defendant or claimant, on motion of the Government attorney, to produce in court his private books, invoices and papers, or else the allegations of the Government were to be taken as confessed. The document to which the statute had been applied in that case was an invoice, which the Government, as well as the defendant, treated throughout the trial and appellate proceedings as a private business record. The Government defended the constitutionality of the statute thus applied on the ground that the action was not against the claimants, but was merely a civil action in rem for the forfeiture of merchandise, in which action the claimants had voluntarily intervened. It argued that in a forfeiture action, private books and papers produced under compulsion have no higher sanctity than other property, since the provision in the Fifth Amendment that no person "shall be compelled in any criminal case to be a witness against himself" applies only to criminal proceedings in personam.
In rejecting the Government's contention, the opinion of the majority of the Court proceeded mainly upon a complex interpretation of the Fourth Amendment, taken as intertwined in its purpose and historical origins with the Fifth Amendment. Under that view, "a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit [i.e., a suit for a penalty or forfeiture] is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution, and is the equivalent of a search and seizure — and an unreasonable search and seizure — within the meaning of the Fourth Amendment." Id. at 634-35; see also id. at 621 et seq. In other words, the majority opinion construed the prohibition of the Fourth Amendment as applying in the foregoing circumstances "to a returnable writ of seizure describing specific documents in the possession of a specific person." 8 Wigmore, Evidence 368 (3d ed. 1940); see Hale v. Henkel, 201 U.S. 43, 71-72 (1906).
Holding this view of the Fourth Amendment, the majority of the Court nevertheless carefully distinguished the "unreasonable search and seizure" effected by the statute before it from the "search and seizure" which Congress had provided for in revenue acts that required manufacturers to keep certain records, subject to inspection (see, e.g., Act of July 20, 1868, c. 186, §§ 19, 45, 15 Stat. 133, 143, regulating distillers and rectifiers): ".. . the supervision authorized to be exercised by officers of the revenue over the manufacture or custody of excisable articles, and the entries thereof in books required by law to be kept for their inspection, are necessarily excepted out of the category of unreasonable searches and seizures. . . . But, when examined with care, it is manifest that there is a total unlikeness of these official acts and proceedings to that which is now under consideration. . . ." Id. at 623-24.
"The State requires the books to be kept, but it does not require the officer to commit the crime. If in the course of committing the crime he makes entries, the criminality of the entries exists by his own choice and election, not by compulsion of law. The State announced its requirement to keep the books long before there was any crime; so that the entry was made by reason of a command or compulsion which was directed to the class of entries in general, and not to this specific act. The duty or compulsion to disclose the books existed generically, and prior to the specific act; hence the compulsion is not directed to the criminal act, but is independent of it, and cannot be attributed to it. . . . The same reasoning applies to records required by law to be kept by a citizen not being a public official, e. g. a druggist's report of liquor sales, or a pawnbroker's record of pledges. The only difference here is that the duty arises not from the person's general official status, but from the specific statute limited to a particular class of acts. The duty, or compulsion, is directed as before, to the generic class of acts, not to the criminal act, and is anterior to and independent of the crime; the crime being due to the party's own election, made subsequent to the origin of the duty." (Italics as in the original.)
"(a) The Administrator is authorized to make such studies and investigations, to conduct such hearings, and to obtain such information as he deems necessary or proper to assist him in prescribing any regulation or order under this Act, or in the administration and enforcement of this Act and regulations, orders, and price schedules thereunder.
"(b) The Administrator is further authorized, by regulation or order, to require any person who is engaged in the business of dealing with any commodity, or who rents or offers for rent or acts as broker or agent for the rental of any housing accommodations, to furnish any such information under oath or affirmation or otherwise, to make and keep records and other documents, and to make reports, and he may require any such person to permit the inspection and copying of records and other documents, the inspection of inventories, and the inspection of defense-area housing accommodations. The Administrator may administer oaths and affirmations and may, whenever necessary, by subpena require any such person to appear and testify or to appear and produce documents, or both, at any designated place.
"(c) For the purpose of obtaining any information under subsection (a), the Administrator may by subpena require any other person to appear and testify or to appear and produce documents, or both, at any designated place.
"(d) The production of a person's documents at any place other than his place of business shall not be required under this section in any case in which, prior to the return date specified in the subpena issued with respect thereto, such person either has furnished the Administrator with a copy of such documents (certified by such person under oath to be a true and correct copy), or has entered into a stipulation with the Administrator as to the information contained in such documents.
"(e) In case of contumacy by, or refusal to obey a subpena served upon, any person referred to in subsection (c), the district court for any district in which such person is found or resides or transacts business, upon application by the Administrator, shall have jurisdiction to issue an order rdquiring such person to appear and give testimony or to appear and produce documents, or both; and any failure to obey such order of the court may be punished by such court as a contempt thereof. The provisions of this subsection shall also apply to any person referred to in subsection (b), and shall be in addition to the provisions of section 4 (a).
"(f) Witnesses subpenaed under this section shall be paid the same fees and mileage as are paid witnesses in the district courts of the United States.
"(g) No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 (U.S.C., 1934 edition, title 49, sec. 46), shall apply with respect to any individual who specifically claims such privilege.
"(h) The Administrator shall not publish or disclose any information obtained under this Act that such Administrator deems confidential or with reference to which a request for confidential treatment is made by the person furnishing such information, unless he determines that the withholding thereof is contrary to the interest of the national defense and security.
"(i) Any person subpenaed under this section shall have the right to make a record of his testimony and to be represented by counsel." 56 Stat. 23, 30, as amended by § 105 of the Stabilization Extension Act of 1944, 58 Stat. 632, 637, 50 U.S.C. App. § 922.
"`The question is,' said Alice, `whether you can make words mean so many different things.'
"`The question is,' said Humpty Dumpty, `which is to be master — that's all.'"
"The Administrator and the Board of Administrative Review or any member or commissioner thereof may administer oaths and affirmations, may require by subpena or otherwise the attendance and testimony of witnesses and the production of documents at any designated place. No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 (U.S.C., 1934 ed., title 49, sec. 46), shall apply with respect to any individual who specifically claims such privilege." Id. at 9226.
As passed by the House, then, the bill would have authorized the Administrator to require the production of the records here in issue, but there would have been no question of their being "public" records, and petitioner would clearly have been accorded the immunity herein claimed. The House Managers yielded as to the record-keeping requirements and the reinstatement of the entire § 202, but there is no mention in their report of the provisions of subsection (g), let alone any indication that there was any difference intended in the scope of the immunity accorded by the two bills.
On January 26, 1942, Representative Gifford stated on the floor of the House:
"But this licensing business, `Compulsory loyalty will crack sooner than the genuine kind.' During the last World War it was loyalty by cooperation. They had licensing, yes, on food products and on fuel, but little of anything else. If the licensee was punished, it was only a slap on the wrist. If he would contribute to the Red Cross he was forgiven. I have a compiled brief on the licensing methods that I could go into at length. An hour would be necessary to properly discuss it and to recite the experiences of ours and other nations. Canada now has it. Let me read to you their statement of policy. These restrictions are not designed to curtail business operations in any way. But by placing every person who in any way handles the commodities named in the order under license, the Board will have the machinery with which to make speedy checks on available stocks and to police more effectively any price-fixing order which may be instituted." (88 Cong. Rec. 672.)
To trace knowledge of the O.P.A. brief to a congressional reader by assuming from this statement that Representative Gifford, who opposed the adoption of these provisions of the bill, was such a reader, and from that to attribute to Congress knowledge of what was in an exhibit to a committee hearing, is so attenuated a process of inferential reasoning as to discredit the whole paraphernalia of legislative history. That the Congress itself does not care to be charged with knowledge of all the extraneous matter for which either House has granted leave to print in the Record is apparent from the rules of the Joint Committee on Printing providing that "the same shall be published in the Appendix" and "in 6 1/2-point type." See Cong. Rec., Dec. 11, 1947, p. A5039. There is, moreover, little basis for concluding that the Gifford "compiled brief" was the O.P.A. brief — different briefs frequently quote from the same authority. On the contrary, the O.P.A. brief hardly presented the argument that "Compulsory loyalty will crack sooner than the genuine kind," nor did it contain material demonstrating either the narrow scope or the weaknesses of World War I licensing.
The Wilson case dealt only with corporate records, and the claim of a corporate officer having their custody to constitutional immunity against being required to produce them. None were required by law to be kept, in the sense that any federal law required that they be kept and produced for regulatory purposes. The only ruling was that a corporate officer has no personal immunity against producing corporate records, which are of course not his own, and that the corporation has no immunity of its own under the Fifth Amendment's guaranty. The decision is not pertinent to the presently tendered problem.
The Heike decision is equally not apropos. The exact ruling was that the evidence, from the production of which the claimed right of immunity, constitutional as well as statutory, arose, "did not concern any matter of the present charge. Not only was the general subject of the former investigation wholly different, but the specific things testified to had no connection with the facts now in proof much closer than that they all were dealings of the same sugar company." 227 U.S. 131, 143. The actual ruling therefore, apart from the fact that a corporate officer claimed immunity in large part for producing corporate records, see id., 142-143, was that the petitioner had not brought himself within the scope of the statutory authorization, namely, because the "transaction, matter or thing" concerning which he had testified had no substantial connection with the matters involved in his prosecution. The decision is authority for nothing more than that the immunity at the most does not attach when the constitutional claim precluded, but said to bring the statute into play, is insubstantial. The dictum stressed in the Court's opinion that the statute "should be construed, so far as its words fairly allow the construction, as coterminous with" (P. 142) the constitutional immunity, not only was unnecessary, but as the clause itself emphasized explicitly negatives exact equivalence. (Emphasis added.)
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