# Counselman v. Hitchcock

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United States Supreme Court
142 U.S. 547
Counselman v. Hitchcock
On the 21st of November, 1890, while the grand jury in attendance upon the district court of the United States for the northern district of Illinois was engaged in investigating and inquiring into certain alleged violations, in that district, of an act of congress entitled 'An act to regulate commerce,' approved February 4, 1887, c. 104, (24 St. 379,) and the amendments thereto, approved March 2, 1889, c. 382, (25 St. 855,) by the officers and agents of the Chicago, Rock Island & Pacific Railway Company, and by the officers and agents of the Chicago, St. Paul & Kansas City Railway Company, and by the officers and agents of the Chicago, Burlington & Quincy Railroad Company, and the officers and agents of various other railroad companies having lines of road in that district, one Charles Counselman appeared before the grand jury, in response to a subpoena served upon him, and, after having been duly sworn, testified as follows:
'Question. Your name is Charles Counselman? Answer. Yes, sir. Q. You are the sole member of Charles Counselman & Co.? A. Yes, sir. Q. Engaged in the grain and commission business in the city of Chicago? A. Yes, sir. Q. Have you been a receiver of grain from the west during the past two years? A. Yes, sir. Q. Over what roads did you ship grain received by you during the present summer of 1890? A. The Rock Island & Burlington, principally. Q. From what states was most of the grain shipped? A. From Kansas and Nebraska, I think. Q. What did your receipts in bushels amount to of corn in the months of May, June, and July, 1890? A. I have no idea; I could not tell you. Q. Five hundred thousand bushels a month? A. I cannot tell you. Q. How many men have you employed during the last year? What is the usual number of men employed in connection with your business? A. I have, I think six or seven men in my office. Q. Have you during the past year, Mr. Counselman, obtained a rate for the transportation of your grain on any of the railroads coming to Chicago, from points outside of this state, less than the tariff or open rate? A. That I decline to answer, Mr. Milchrist, on the ground that it might tend to criminate me. Q. During the past year have you received rates upon the Chicago. Rock Island & Pacific from points outside of the state to the city of Chicago, at less than the tariff rates? A. That I decline to answer on the same ground. Q. I will ask you the same question with reference to the Burlington. A. I answer in the same way. Q. The same with reference to Atchison. A. I can't recollect that we have done any business with that road. Q. I will ask you whether you have during the last year received a rate less than the tariff rate on what is called the 'Diagonal' or Stickney road. A. Not to my knowledge. Q. Who attends to the freight department of your business? A. Myself and Mr. Martin. Q. Have you or the firm of Charles Counselman & Co. received any rebate, draw back, or commission from the Chicago, Rock Island & Pacific Railroad Company, or the Chicago, Burlington & Quincy Railroad Company, on the transportation of grain from points in the states of Nebraska and Kansas, to the city of Chicago, in the state of Illinois, during the past year, where by you secured the transportation of said grain at less than the tariff rates established by said railroad? A. I decline to answer on the same ground.'
The grand jurors thereupon filed in said court, on the 22d of November, 1890, their report, signed by their foreman and clerk certifying to the court the several questions which Counselman so refused to answer. Thereupon the judge of the court granted a rule of Counselman to show cause why he should not answer the said questions, a hearing was had, and the court made an order, on the 25th of November, 1890, which found that the excuses and reasons advanced on behalf of Counselman, as to why he should not answer said questions, were wholly insufficient, and directed that he appear before the grand jury without delay, and there answer the said questions, and also such further questions touching the matter under inquiry by the grand jury, and which should be pertinent to such inquiry, as should be propounded to him by any member of the grand jury, or the district attorney, or any of his assistants.
Counselman was again called before the grand jury, and the same questions, together with other kindred questions, were submitted to him to answer; and he refused to answer them, and each of them, for the same reasons. The grand jury, by its report signed by its foreman and clerk, reported to the court that Counselman still refused to answer the questions which he had previously refused to answer, and upon the same grounds, and that there were also propounded to him by the district attorney and the grand jury additional questions, which, and the answers thereto, were as follows:
'Question. Do you know whether or not the Chicago, Rock Island & Pacific Railroad Company transported for any person, company, or corporation in the city of Chicago, during the year last past, grain from any point in the states of Nebraska, Kansas, or Iowa, to the city of Chicago, in the state of Illinois, for less than the established rates in force on such road at the time of such transportation? Answer. I decline to answer, on the ground that my answer might tend to criminate me. Q. Do you know any person, corporation, or company who has obtained their transportation of grain from points or places in the states of Iowa, Nebraska, or Kansas, to the city of Chicago, over the Chicago, Rock Island & Pacific Railroad, during the past year, at a rate and price less than the published and legal tariff rate at the time of such shipment? A. I decline to answer, for the reason that my answer might tend to criminate me. Q. Do you know whether the Chicago, Rock Island & Pacific Railroad Company, within the past year, has charged, demanded, or received from any person, company, or corporation in the city of Chicago any less rate than the open rate, or rate established by said railroad company, on grain or other property transported by the said railroad company from points in the states of Nebraska, Kansas, and Iowa to the city of Chicago, in the state of Illinois? If you have such knowledge, give the name of such shipper of whom said rate was charged, demanded, or received, and the amount of such rate and shipments, stating fully all the particulars within your knowledge. A. I decline to answer, for the reason that my answer might tend to criminate me. Q. Do you know whether the Chicago, Rock Island & Pacific Railroad Company, during the year A. D. 1890, has paid to any shipper, at the city of Chicago, any rebate, refund, or commission on property and grain transported by such company from points in the states of Kansas, Nebraska, or Iowa, whereby such shipper obtained the transportation of such grain or property from the said points in said states to the city of Chicago, in the state of Illinois, at a less rate than the open or tariff rate, or the rate established by said company? If you have such knowledge, state the amount of such rebates, the drawbacks, or commissions paid, to whom paid, the date of the same, and on what shipments, and state fully all the particulars within your knowledge relating to such transaction or transactions. A. I decline to answer, for the reason that my answer might tend to criminate me.'
Thereupon, after a hearing, the court on November 25, 1890, adjudged Counselman to be in contempt of court, and made an order fining him $500 and the costs of the proceeding, and directing the marshal to take him into custody and hold him until he should have answered said questions, and all questions of similar import which should be propounded to him by the grand jury, or the district attorney, or any assistant district attorney, in the presence of such jury, and until he should pay such fine and costs. Under that order he was taken into custody by the marshal and held.
On the 26th of November, 1890, he filed in the circuit court of the United States for the northern district of Illinois a petition setting forth the foregoing facts, and praying for a writ of habeas corpus. The petition alleged that the grand jury had no jurisdiction or authority to make the investigation in question, or to submit to him the several questions referred to; that his answers to those questions would tend to incriminate him, and, by compelling him to answer them, he would be compelled to be a witness against himself in the criminal proceeding and investigation pending before the grand jury, and in any criminal proceedings which might be brought as a result of such investigation, contrary to the provisions of the constitution of the United States, and especially the fourth and fifth amendments thereof; that the district court had no jurisdiction to compel him to answer said questions; that its order to that effect was contrary to the constitution and laws of the United States, and was void; that the district court had no jurisdiction so to adjudge him in contempt; that the order imposing a fine upon him and committing him to the custody of the marshal was void; and that he was held in custody without legal right, and contrary to the constitution and laws of the United States.
On the same day, the circuit court issued a writ of habeas corpus, returnable forthwith, the return to which by the marshal was that Counselman was held under the order of the district court, made November 25, 1890. The case was heard on November 28th, and on December 18th the circuit court, held by Judge GRESHAM, delivered an opinion, (44 Fed. Rep. 268,) and made an order adjudging that the district court was in the exercise of its rightful authority in doing what it had done, overruling the motion of Counselman for his discharge, dismissing his petition, remanding him to the custody of the marshal, discharging the writ of habeas corpus, and adjudging against Counselman the costs of the proceedings. He excepted to the order and appealed to this court, and an order was made admitting him to bail pending the appeal.
John N. Jewett and Jas. C. Carter, for appellant.
Atty. Gen. Miller and G. M. Lambertson, for appellee.
[Argument of Counsel from pages 553-559 intentionally omitted]
Mr. Justice BLATCHFORD delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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