Brown v. Walker

• Decision Date: 23 March 1896
• Docket Number: No. 765,765
• Citation: 161 U.S. 591,16 S.Ct. 644,40 L.Ed. 819
• Parties: BROWN v. WALKER
• Court: U.S. Supreme Court

161 U.S. 591

16 S.Ct. 644

40 L.Ed. 819

BROWN

v WALKER.

No. 765.

March 23, 1896.

This was an appeal from an order of the circuit court, made upon the return of a writ of habeas corpus, remanding the petitioner, Brown, to the custody of the marshal, the respondent in this case. 70 Fed. 46.

It appeared that the petitioner had been subpoenaed as a witness before the grand jury, at a term of the district court for the Western district of Pennsylvania, to testify in relation to a charge then under investigation by that body against certain officers and agents of the Alleghany Valley Railway Company, for an alleged violation of the interstate commerce act. Brown, the appellant, appeared for examination, in response to the subpoena, and was sworn. After testifying that he was auditor of the railway company, and that it was his duty to audit the accounts of the various officers of the company, as well as the accounts of the freight department of such company during the years 1894 and 1895, he was asked the question:

'Do you know whether or not the Alleghany Valley Railway Company transported, for the Union Coal Company, during the months of Jul , August, and September, 1894, coal, from any point on the Low Grade Division of said railroad company to Buffalo, at a less rate than the established rates in force between the terminal points at the time of such transportation?'

To this question he answered:

'That question, with all respect to the grand jury and yourself, I must decline to answer, for the reason that my answer would tend to accuse and incriminate myself.'

He was then asked:

'Do you know whether the Alleghany Valley Railway Company, during the year 1894, paid to the Union Coal Company any rebate, refund, or commission on coal transported by said railroad company, from points on its Low Grade Division, to Buffalo, whereby the Union Coal Company obtained a transportation of such coal between the said terminal points at a less rate than the open tariff rate, or the rate established by said company? If you have such knowledge, state the amount of such rebates or 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.'

Answer: 'That question I must also decline to answer, for the reason already given.'

The grand jury reported these questions and answers to the court, and prayed for such order as to the court might seem meet and proper. Upon the presentation of this report, Brown was ordered to appear and show cause why he should not answer the said questions or be adjudged in contempt, and, upon the hearing of the rule to show cause, it was found that his excuses were insufficient, and he was directed to appear and answer the questions, which he declined to do. Whereupon he was adjudged to be in contempt and ordered to pay a fine of five dollars, and to be taken into custody until he should have answered the questions.

He thereupon petitioned the circuit court for a writ of habeas corpus, stating, in his petition, the substance of the above facts. The writ was issued, petitioner was produced in court, the hearing was had, and on the 11th day of September, 1895, it was ordered that the petition be dismissed, the writ of habeas corpus discharged, and the petitioner remanded to the custody of the marshal.

From that judgment Brown appealed to this court.

Per Mr. Justice Shiras, mr. Justice Gray, and Mr. Justice White, dissenting.

James C. Carter, for appellant.

George F. Edmunds, for appellee.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

This case involves an alleged incompatibility between that clause of the fifth amendment to the constitution which declares that no person 'shall be compelled in any criminal case to be a witness against himself,' and the act of congress of February 11, 1893 (27 Stat. 443), which enacts that 'no person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agreements and documents before the interstate commerce commission, or in obedience to the subpoena of the commission, * * * on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or 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, before said commission, or in obedience to its subpoena, or the subpoena of either of them, or in any such case or proceeding.'

The act is supposed to have been passed in view of the opinion of this court in Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, to the effect that section 860 of the Revised Statutes, providing that no evidence given by a witness shall be used against him, his property or estate, in any manner, in any court of the United States, in any criminal proceeding, did not afford that complete protection to the witness which the a endment was intended to guaranty. The gist of that decision is contained in the following extracts from the opinion of Mr. Justice Blatchford, referring to section 860: 'It could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him or his property in a criminal proceeding in such court. It could not prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on which he might be convicted, when otherwise, and if he had refused to answer, he could not possibly have been convicted.' And again: 'We are clearly of opinion that no statute which leaves the party or witness subject to prosecution, after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the constitution of the United States. Section 860 of the Revised Statutes does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition. In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecutions for the offense to which the question relates.'

The inference from this language is that, if the statute does afford such immunity against future prosecution, the witness will be compellable to testify. So also in Emery's Case, 107 Mass. 172, 185, and in Cullen v. Com., 24 Grat. 624, upon which much reliance was placed in Counselman v. Hitchcock, it was intimated that the witness might be required to forego an appeal to the protection of the fundamental law, if he were first secured from future liability and exposure to be prejudiced, in any criminal proceeding against him, as fully and extensively as he would be secured by availing himself of the privilege accorded by the constitution. To meet this construction of the constitutional provision, the act in question was passed, exempting the witness from any prosecution on account of any transaction to which he may testify. The case before us is whether this sufficiently satisfies the constitutional guaranty of protection.

The clause of the constitution in question is obviously susceptible of two interpretations. If it be construed literally, as authorizing the witness to refuse to disclose any fact which might tend to incriminate, disgrace or expose him to unfavorable comments, then, as he must necessarily, to a large extent, determine, upon his own conscience and responsibility, whether his answer to the proposed question will have that tendency (1 Burr's Trial, 244; Fisher v. Ronalds, 12 C. B. 762; Reynell v. Sprye, 1 De Gex, M. & G. 656; Adams v. Lloyd, 3 Hurl. & N. 351; Merluzzi v. Gleeson, 59 Md. 214; Bunn v. Bunn, 4 De Gex, J. & S. 316; Ex parte Reynolds, 20 Ch. Div. 294; Ex parte Schofield, 6 Ch. Div. 230), the practical result would be that no one could be compelled to testify to a material fact in a criminal case, unless he chose to do so, or unless it was entirely clear that the privilege was not set up in good faith. It, upon the other hand, the object of the provision be to secure the witness against a criminal prosecution, which might be aided directly or indirectly by his disclosure, then, if no such prosecution be possible,—in other words, if his testimony operate as a complete pardon for the offense to which it relates,—a statute absolutely securing to him such immunity from prosecution would satisfy the demands of the clause in question.

Our attention has been called to but few cases wherein this provision, which is found with slight variation in the constitu- tion of every state, has been construed in connection with a statute similar to the one before us, as the decisions have usually turned upon the validity of statutes providing, as did section 860, that the testimony given by such witness should never be used against him in any criminal prosecution. It can only be said, in general, tha the clause should be construed, as it was doubtless designed, to effect a practical and beneficent purpose, not necessarily to protect witnesses against every possible detriment which might happen to them from their testimony, nor to unduly impede, hinder, or obstruct the administration of criminal justice. That the statute should be upheld, if it can be construed in harmony with the fundamental law, will be admitted. Instead of seeking for excuses for holding acts of the legislative power to be void by reason of their conflict with the constitution, or with certain supposed fundamental principles of civil liberty, the effort should be to reconcile them if possible, and not to hold the law invalid unless, as was observed by Mr....