against carrier corporations were returned by the grand jury in western district of Tennessee under charge of Hammond, J. 115 Fed. 588 (1902). In this charge the opinion was expressed not only that corporations were indictable under section 5, but that under the act of 1893 there was no vicarious immunity and that there was no immunity to the corporation from the enforced testimony of the officers, or productions of its books and papers.

The Elkins Act of February 19, 1903 (infra, § 422), has distinctly changed the relations of corporations to the act, first, in making (sec. 1) the corporation liable for conviction for misdemeanor and fine on account of any act done or omitted in violation of the statute by any officer acting in its behalf, and, second, in expressly authorizing (sec. 3) the enforced production of the corporate books and papers; and it then grants immunity in the language above quoted.

It was held by the supreme court in Hale v. Henkel, 201 U. S. 43, 50 L. Ed. 652 (1906), in a case of habeas corpus sued out by a witness who was summoned under a subpoena duces tecum to bring certain papers and agreements of the American Tobacco Company, his employer, in an examination before the grand jury for an alleged violation of the anti-trust act and he declined to obey on the ground of self incrimination, that the immunity given by the act of February 25, 1903 (see infra, § 488), was sufficient for the protection of the witness.

It was also held that he could not claim the privilege of another person or the corporation of which he was an officer or employe. While the corporation could not claim immunity under the fifth amendment it was entitled to protection against unreasonable searches and seizures under the fourth amendment. The corporation was a creature of the state. Although the corporation in this case was a state corporation, the power of the general government to the exercise of this authority was the same as if the corporation had been created by act of congress, although the court claimed no general visitatorial power over the state corporations. Justices Brewer and Fuller dissented, holding that corporations were protected in both the 4th and 5th amendments. See also McAlister v. Henkel, 201 U. S. p. 90, 50 L. Ed. 671 (1906), where the papers called for were specifically described, and the judgment was affirmed.

The same ruling was made in Nelson v. U. S., 201 U. S. 92, 51 L. Ed. 673 (1906), in a case arising under the anti-trust act in a suit of the government against the General Paper Company. The refusal of the corporate officers to obey the order of appellate court in such a case to produce documentary evidence could not be justified on the theory that the evidence was not in their possession or under their control, when their possession was not personal but that of a corporation. It was also ruled that evidence, whether documentary or oral, sought to be elicited from witnesses in such an action, was material where it would tend to establish the manner in which the agent executed its functions, and that the immateriality of the evidence would not justify their refusal to answer questions put to them and to produce written evidence in examination before a special master; and the materiality of the evidence was not open to consideration on a writ of error sued out by witnesses to review a judgment for contempt.

These cases were both under the Anti-Trust Act, but the principle decided that the immunity is personal to the witness and did not extend to the corporation of which he was an employe, was clearly applicable to proceedings before the commission or the courts under the Interstate Commerce Act. There is, therefore, no immunity to the corporation by reason of the enforced testimony of its officers, nor can an officer or an employe refuse to produce books of an employer corporation on the ground that it would implicate the corporation employer. Gardner v. Early, 69 Iowa, 42. The ruling in Hale v. Henkel was re-affirmed in Wilson v. United States, infra, in 1911.

In proceedings under the Interstate Commerce Act therefore the immunity as regards books and papers extends in any event only to those which are private, that is, to those whose production or inspection can only be enforced when incriminating under statutory immunity. It does not include records, whether corporate or individual, which are made public by law.

Thus the railroad rates and regulations concerning rates are required by law to be public. A tariff sheet of a railroad which is required by law to be publicly posted is not a private paper, and its enforced production in a prosecution against a railroad company is not compelling it in a legal sense to give evidence against itself. L. & N. R. Co. v. Commonwealth (Ky. 1899),

51 S. W. Rep. 167; as to applications of same principle, see People v. Coombs, 158 N. Y. 532 (1899); State v. Donovan, 10 N. Dak. 203; State v. Smith, 74 Iowa, 580.

§ 347. Immunity act of Feb. 25, 1903 and June 13, 1906.—By the act of February 25, 1903 it was provided both as to the Interstate Commerce Act and the Anti-Trust Act that no person shall be 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, in any suit proceeding or prosecution under said act, and provided further that no person so testifying shall be exempt from prosecution or punishment for perjury committed in so testifying.

In U. S. v. Armour, 142 Fed. 808, in March, 1906, district court northern district of Illinois, it was held on a motion to quash indictments of corporations and individuals for conspiracy in violation of the Anti-Trust Act that a corporation, whether state or federal, could not claim immunity from prosecution for violation of the Interstate Commerce or Anti-Trust laws of the United States because of testimony given or produced by its officers or agents before the Interstate Commerce Commission or the Commissioner of Corporations or in any proceeding, suit, or prosecution under such laws, the right to immunity being limited to individuals who, as witnesses, gave testimony or produced evidence; but as to the individual defendants it was held that the immunity under the acts of congress extended to a person who gave self-incriminating statements to the Commissioner of Corporations in the course of his official investigation under section 6 of the act of February 14, 1903, creating the department to commerce and labor and authorizing the Commissioner of Corporations to make investigations and compel the attendance of witnesses. The indictment as to individual defendants was therefore quashed. Under the recommendation of the president, in view of this ruling, the act of June 13, 1906 was passed providing that "under the several immunity acts immunity shall extend only to a natural person who, in obedience to a subpoena, gives testimony under oath or produces evidence, documentary or otherwise, under oath."

In a subsequent indictment of the parties whose indictment was quashed in U. S. v. Armour, supra, it was held in U. S. v.

Swift, 186 Fed. 1002 (1911), that this immunity act did not make the defendants immune from prosecution thereafter for continuing the same offense. See infra, Anti-Trust Act, sec. 2.

§ 348. Corporate official compelled to produce corporate books containing personally incriminating matter.-In Wilson v. The United States, 220 U. S. 614, 55 L. Ed. - (May, 1911), the supreme court affirmed the judgment of the circuit court for the southern district of New York in committing the president of the United Wireless Telegraph Company, the main corporation, for contempt for refusing to produce the corporate books in his custody before the grand jury. The court said that Wilson was protected against giving oral self-incriminating testimony and against the production of his private books and papers; but the copies of letters written by the president of the corporation in the course of his transactions were as much a part of its documentary property, subject to its control and to its duty to produce when lawfully required in judicial proceedings, as its ledgers and minute books. He could not make the books his private or personal books by keeping copies of personal letters in them. It seems that the court had suggested the removal of the strictly private letters from the books. The court said the fact that the appellant himself wrote or signed the official letters copied into the books neither conditioned nor enlarged his privilege, and that the principle applied not only to public documents and public offices, but also to records required by law to be kept in order that they may be suitable information for transactions which are appropriate subjects of governmental regulation and the enforcement of restrictions validly established; there the privilege which existed as to private papers cannot be maintained.

Wilson held the corporate books subject to the corporate duty. If the corporation was guilty of misconduct, he could not withhold its books to save it; and if he were implicated in the violations of law, he could not withhold the books to protect himself from the effect of their disclosures. It was immaterial that the corporation was organized under state law, and that Wilson's own conduct was under investigation with a view to his own indictment. Justice McKenna dissented.

8 349 (265). Probative effect of enforced self-incriminating testimony-It was held in Burrell v. Montana, 194 U. S. 572 (1904), 48 L. Ed. 1122, that testimony given in an examination in bankruptcy, which was used without objection on the trial of the bankrupt on indictment in the state court did not violate any federal right. Section 7 of the Bankrupt Act providing that the testimony should not be offered, did not deprive the evidence of probative force when admitted without objection in the state court.

$350 (266). Immunity is limited to the subject of testimony. In United States v. Price, 96 Fed. 960 (1899), parties were indicted for conspiring to obstruct justice by taking from a witness subponed to appear before a United States grand jury, certain papers which he had been directed to produce as furnishing testimony concerning a charge of violation of the act to regulate commerce then before the grand jury. Two of the indicted persons testified that they had been called before and had testified before the grand jury concerning the violation of the act to regulate commerce, and had also testified concerning the taking of the papers from the witness. The court overruled the pleas, saying it was not the intention of congress to grant to a witness amnesty as to other crimes merely because he had testified to the violation of the Interstate Commerce Act. The amnesty was only co-extensive with the requirement to testify. The first clause of the act of 1893 made necessary the second clause; otherwise neither would have been effective. The latter supplemented the former and was limited by it, and referred to nothing except to matters that witnesses should not be excused from testimony by virtue of the act. The court said that this was not the proper construction of the act of 1893. The least collusion with a friendly grand jury might enable the worst violator of the laws of the United States to entitle himself to testify by procuring himself to be summoned as a witness nominally to testify, or to be asked about a violation of the Interstate Commerce Law.

8 351 (267). Power of the court to enforce testimony before the commission sustained.-In Brimson v. Interstate Commerce Comm., 154 U. S. 447, 38 L. Ed. 1047 (1893), the supreme court,