The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-03-13

dence, as it would be utterly impossible
otherwise to carry on the administration
OF justice.
Continuing, Justice Brown said;
If. whenever an officer or employee OF a
corporation were summoned before a Grand
Jury as a witness he could refuse to produce
the books and documents of such corporation
upon the ground that they would
the corporation itself. it would result In the
failure of a large number of cases where
the illegal combination was determinable
only upon the examination OF such papers.
But conceding that the witness was an ofiicer
OF the corpor alton under investigation and
that he was entitled TO assert the rights of
the corporation with respect to the production
OF it's books and papers, we are Of the opinion
that there Is a clear distinction in this particu-
lar between an individual and a corporation
and that the latter has no right TO refuse 10
submit its books and papers for an examina-
ton at the suit Of the State. The Individual
may stand on his private business In his own
way. His power TO contract Is unlimited.
He owes no duty to the State or TO his neigh
bors to divulge his business or to open his
doors to an investigation. 40 far as It may
tend to criminate him.
On the other hand. the corporation ID a
creature of the State, II is presumed to be
Incorporated for the benefit OF the public.
1t receives certain special privileges and
franchises and holds them subject to the laws
OF the State and the limitations Of Its charter.
Its rights to act as a corporation are only
preserved to ii 80 long as it obeys the laws
OF it's creation. There Ia a reserved right
in the Legislature to investigate its contract
and fnd out whether it has exceeded ite powers.
1t would be a strange anomly to hold that
q State, having chartered q corporation
to make use Of certain franchises, could not
in the exercise of its sovereignty inquire
how those franchises had been employed
and whether they had been abused. and de-
mand the production of the corporate books
and papers for that purpose.
The defence amounts TO this: That an
officer of a corporation which is charged with
a criminal violation Of the statute may plead
the criminality OF suoh corporation as a re-
fussl to produce it's books. To state this
proposition is to answer 1t. While an indi-
vidual may lawfully refuse to answer inorim-
mating questions, unless protected by an
immunity statute. ii does not follow that a
corporation vested with special privileges and
franchises may refuse to show it's hand when
charged with an abuse of such privileges.
1t is true that the corporation in this case
was chartered under the laws OF New Jersey
and that it received it's franchise from the
Legislature of that State: but such franchises,
so far as they involve questions of interstate
must also be exercised in subor-
ulIHtlUu W L1lt puNtl VI ollBsCb ~ ttbuiuNp
such commerce, and In respect to this the
General Government may also assert a SOW
ereign authority to ascertain whether such
franchises have been exercised in a lawful
manner. with due regard to its own laws.
Being subject 10 this dual sovereignty. the
general Government possesses the same right
to see that it's own laws are respe cited as the
State would have with respect to the special
franchises vested in 1t by the laws OF the
G,ota Tho pnuara IF the CQnaFal GOvarn-
ment in this particular in the vindication
of its own laws are the same as IL the cor
p~oration had been created by an act OF Con-
gress. 1t Is not intended to intimate, how
ever, that it has a general visitorial power
over State corporations.
Although, for the reasons above stated,
we are Of the opinion that an of1cer Of a cor
p~oration which is charged with a violation of
q statute Of the State of it's creation or of
an act of Con gress passed in the e1erc Use
Of its constitutional powers cannot refuse
to produce the books and papers OF such cor
poration, we do not wish to be understood
as holding that o corporation is not entitled
to immunity under the Fourth Amendment
against unreasonable searches and seizure.
A corporation is, after all, but an association
of individual Is under an assumed nam and
with a distinct legal entity In ling
itself as a collective body IL valves no con-
stitutional immuni ty appropriate to such
body. Its property cannot be taken without
compensation. 1t can only be proceeded
against by due process OF law, and is pro-
tected under the Fourteenth Amendment
against unlawful discrimination.
We are also Of opinion that an order for the
production OF books and papers may consti-
tute an unreasonable search and seizure
within the Fourth Amendment. While a
search ordinarily implies a quest by an Of
fcer of the law and a seizure c~ontempRtes
a forcible dispossession of the owner. still.
as was held in the Boyd case. the substance
of the offence is the compulsory production
of private papers. whether under a search
or a subpoena duces tecum. against which
the person. be he individual or corporation,
Is entitled to protection.
Applying the test of reasonablen ess to the
present case, we think the subpoena ducestecum
far too sweeping in its terms TO be regarded
as reasonable. 1t does not require the pro-
duction OF a single contract or of contracts
with q particular corporation or a limited
number of documents, but all UNDERSTANDINGS,
contracts or correspondence between the
MaoAndrews r Forbes Company and no
less than six different companies, as we'll as
all reports made and accounts rendered by
such companies from the date Of the organ
ization Of the MacAndrews 4 Forbes Com
pany, as we'll as all letters received by that
company since Its organization from more
than q dozen different companies situated
in seven different States Of the Union
II the writ had required the production OF
all the books. papers and documents found
In the Office OF the MacAndrews 4 Forbes
Company it would scarcely be more uni
versaI In it's operation or more completely
put a stop to the business Of that company.
Indeed. II Is din cult to say how Its business
would be carried on after IL had been denuded
of this mass Of material. which is not shown to
be necessary in the prosecution Of this case
and Ia clearly in violation Of the general
principle Of law with regard to the particu-
farity required in the description, of doou-
ments necessary to a search warrant or sub
pRna.
or course, in view of the power OF Congress
over interstate nmer TO which We have
adyerted, We do not wish TO be understood
as holding that an examination Of the books
OF a corporation, II duly auth orized by act OF
Congress. would constitute an unreasonable
search and seizure within the Fourth Amend
ment.
Justice Brewer, joining with Chief Justice
Fuller In a dissenting opinion, took tho
ground that a corporation was entitled TO
all the immunities under the Fourth and
Fifth amendments that were accorded under
the Fourteeath Amendment, about which
there was no question. He dissented also
to the proposition that the Federal Govern