scope and interpretation of the act. We think the act is constitutional, and, therefore, that the judgment should be reversed.

MR. JUSTICE HOLMES, dissenting.

I must admit that I think there are strong reasons in favor of the interpretation of the statute adopted by a majority of the court. But, as it is possible to read the words in such a way as to save the constitutionality of the act, I think they should be taken in that narrower sense. The phrase "every common carrier engaged in trade or commerce" may be construed to mean "while engaged in trade or commerce" without violence to the habits of English speech, and to govern all that follows. The statute then will regulate all common carriers while so engaged in the District of Columbia or in any Territory, thus covering the whole ground as to them; and it will regulate carriers elsewhere while engaged in commerce between the States, etc., thus limiting its scope where it is necessary to limit it. So construed I think the act valid in its main features under the Constitution of the United States. In view of the circumstances I do not discuss details.

CONSOLIDATED RENDERING COMPANY v. THE STATE

OF VERMONT, BY CLARKE C. FITTS, ATTORNEY GENERAL.

ERROR TO THE SUPREME COURT OF THE STATE OF VERMONT.

No. 364. Argued December 3, 4, 1907.-Decided January 6, 1908.

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

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 non-judicial 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. Quare 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 laws, or as conferring judicial functions on non-judicial 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 Atl. Rep. 790, affirmed.

THIS writ of error brings up for review a judgment of the

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. No. 75 Laws, p. 79. 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 of 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,

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

207 U.S.

Argument for Plaintiff in Error.

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 Atl. Rep. 790.

Mr. Freedom Hutchinson and Mr. Albert S. Hutchinson for plaintiff in error:

The notice to produce was in excess of the authority granted by the statute, and was invalid.

Inflicting a fine upon the plaintiff in error for failure to obey VOL. CCVII-35