The Birmingham age-herald., 1921-06-18

| the compulsory production of piI vate papers, whether unuer a searct
 warrant of subpoena duces tecuul against which a person, he be indl | yidual or corporation, is entitled tc
 protection. Applying the test of req condolences to the present case, W' think the subpoena duces tecum i'
 far too sweeping in it's terms to bc regarded as reasonable"
 | To the same effect is the very lat est utterance of the court in the cast f of Silverthorne Lumber Co V. United
 States. Advance Sheets No. [, D. 2U3 where it was said: But the rights
 of corporation against unlawful search and seizure are to be protected
 even if the same result might have
 been achieved in lawful way"
 That the Boyd case has not only
 never been departed from. but has been frequently cited with approva
 as to what was said upon the Fourth and Fifth Amendments of the Foder-
 al Constitution, was pointed out 1T the majority opinion of the court ir lGs parte Rhodes, 202 Ala. 6S, A. L.
 R. 56S. wherein the court said:
 Counsel also seems to think tha' the Supreme Court of the Unitct States has departed from the doctrine announced in the case of Boyd V
 United States. 116 U. s. 616, 29 l.. Ed TAG, Sup. Ct. Rep 524. That court has never departed from the cor
 struction of the Fourth and Fifth Amendments to the Federal Const:tu ton. placed thereon by Judge Brad ley in Boyd's case. It was not de-
 parted from in the case of Hale V
 Henkel. 2o1 U. s. 43, 50 L. Ed. 652, >2( Sup. ct. Rep. 370. It was only dis tinguished by Judge Brown from the case then in hand. It was, as to the point here in-question, fully affirmed and was in part quoted with approy- al. It has often been quoted with ap-
 proval, as to it's construction of both the Fourth and Fifth Amendments
 and has never been departed from See Roses notes to that decision. As late as the case of Weeks V. United States. s2S2 U. S. 3S3, 5S l.. Ed. 652 L. R. A. 1915B, S34 34 Sup. Ct. Rep
 341. Ann. Gas. 1915C, 1117,i Boyd's case is accepted and quoted as to the construction of these Bills oi Rights
 The language of the Boyd case met the approval of this court at very early period after the deliverance 't the opinion as disclosed in the case of Chastane V. State. S3 Ala. ss
 wherein Chief Justice Stone, after stating that the court had read the able opinion of Justice Bradley Tn Boyd V. United States, said: We in- dorse and approve everything said therein"
 There appears to be some insist" cree on the part of counsel for ap- pellant that such constitutional pro vision only applies to criminal pro cedure" but the authorities cited to this end do not sustain that view Brown V. Walker. 161 U. s. 591, and Ccuncilmen V. Hitchcock. 142 D. S. 547, cited gin counsels brief involve only the Fifth Amendment to the Federal Constitution, and are there fore without application. In the case of Flint V. Stone-Tracy Co, 220 U. g. 106, 55 l.. ed. 3s9. it was merely held that the requirement. that the returns of the corporation as to as- sessments there i'm question should be open to inspection upon the order of the president and upon the rules and regulations to be prescribed by the secretary and treasurer, and ap- proved by the president was not vio- lative of the constitutional protec- ton of the Fourth Amendment, and it was pointed out in the opinion that in many of the states laws Of similar character are found regu- lating tax returns. It requires no discussion to disclose Chat that au- thority does not sustain the conten- ton. The language which we have previously quoted from Weeks V. United States, to the effect that this protection reaches all alike, whether accused of crime or not, should De
 l. .- tAr rdn the language as to unreasonable search and seizure in our State Con stitution as well as the Fourth Amendment to the Federal Constitu- ton, contain no exception as to civil procedure, or any other exceptions; and to hold that such constitutional protection was merely applicable to criminal procedure would be entire ly unwarranted. In the very recent ease of Gouled " United States, No. 10 Advanced Sheets, p. 311. the court said: The prohibition of the Fourth Amendment is against all unreason- able searches and seizures" Nor do we find anything in the case of ex parte Pepper, 1855 Ala. 2S4, that mili- tates against the conclusion here reached Neither section five of our Constitution nor the Fourth Amend ment to the Federal Constitution was there discussed or considered. Nor do the cases of Ex parte Davies, o6 L. R. A. S55; Cooperative B. L.. Assn V. State, 156 Ind. 46S, and Sat erwhite V. State, 40 N. F. 654, cited by counsel for appellant, conflict with this view.
 This leads us, therefore, to a con- sideration of the asserted power of the State Tax Commission in view of these constitutional provisions. To place the question in more concrete form. would the power and authority of the State Tax Commission to de- mand of the taxpayer an inspection of his private books. documents and papers, of every character in com nection with his business, at any time without regard to any pending matter or controversy, be violative of the constitutional provision, above discussed, against unreasonable search and seizure? The power here sought to be exercised is in the na- ture of a bill of discovery. but Is more sweeping and far reuching; for bill of discovery would be condemned which disclosed upon it's face that it was mere fishing expedition" While one may maintain bill of discovery for the ascertainment of relevant facts and circumstances in the possession of the adverse party, yet. as said in R. c. l.. D. III, The right however can be Justified only on the ground that there is a real cause of action pending or to be brought, and that the court is ensi- tied to the information in aid of proper judicial proceedings, and the discovery. either from party or by the production of books and papers. must be of matter which is material and pertinent to the issues in the case: A court will not in- terfere in this way to enable a party