In re Consol. Rendering Co.

• Decision Date: 11 May 1907
• Citation: 80 Vt. 55,66 A. 790
• Parties: In re CONSOLIDATED RENDERING CO.
• Court: Vermont Supreme Court

66 A. 790

80 Vt. 55

In re CONSOLIDATED RENDERING CO.

Supreme Court of Vermont. Chittenden.

May 11, 1907.

[Copyrighted material omitted.]

Exceptions from Chittenden County Court; John W. Rowell, Judge.

Proceedings against the Consolidated Rendering Company for a contempt.Order adjudging the company guilty, and excepts.Exceptions overruled.

The respondent was adjudged guilty of contempt and fined $3,000.Exceptions by respondent; also petition for writ of certiorari, and petition for a writ of error.The Consolidated Rendering Company is a corporation organized under the laws of the state of Maine, having its principal business office at Boston, Mass., and carrying on a meat and rendering business plant at Burlington, Vt., under the name of the Burlington Rendering Company.At the September term, 1906, of the Chittenden countycourt, the grand jury of that county had under consideration certain charges against four persons named, members of the board of cattle commissioners of the state of Vermont, for having sold diseased meat for food purposes, at said Burlington, contrary to the statute of this state.October 10, 1906, said company was served by an officer with a copy of an order of said court to produce before the grand jury on the 17th day of said October "all books of account, letters, accounts, memoranda, data, copies of bills, statements and copies of statements at any time made or kept or had by said company at said Burlington, which contain any account with, statement of, or relating to, or concerning any deal or business with any of the following parties since January 1, 1904[naming the four persons], or with the cattle commissioners of the state of Vermont, or with the state of Vermont; also all books, vouchers and receipts issued by your company, or by any officer or employé of your company at said Burlington since January 1, 1904, to any of the abovenamed parties; also all statements, correspondence, data, memoranda, books, vouchers, and receipts, made or kept at said Burlington, which relate to the payment by your company to any of the above parties on the following dates and for the amounts specified opposite each date [and here followed some over 40 dates and amounts, commencing January 4, 1905, and ending June 29, 1906, and] to be used as might be legally admissible before the grand jury relative to the matter of complaint pending, and there to be investigated before said grand jury in which [said four persons] are charged with having unlawfully sold diseased meat for food purposes at said Burlington."The alleged contempt was for the refusal to produce the documentary evidence.The proceedings are sufficiently set forth in the opinion.

Argued before TYLER, MUNSON, and WATSON, JJ., and WATERMAN, Superior Judge.

Clarke C. Fitts, Atty. Gen., and A. L. Sherman, State's Atty., for the State.R. E. Brown, W. B. C. Stickney, J. J. Enright, Freedom Hutchinson, and Albert Hutchinson, for rendering company.

WATERMAN, Superior Judge.The respondent has adopted three methods of bringing the case before this court for reviewing the proceedings of the county court: Exceptions were taken to the rulings of the court, which were duly filed: a petition for a writ of certiorari was filed in this court; and also a petition for a writ of error.It is of no importance in this case which of the first two methods is deemed the most appropriate, nor would a discussion of the methods pursued in other jurisdictions be beneficial.We have a statute under which such a case may be taken to the Supreme Court on exceptions.V. S. 1025.It is true our statute(V. S. 1610-1612) provides for bringing contempt proceedings before this court by habeas corpus, but, of course, that applies only to cases where the relator is actually in confinement for noncompliance with some order of court.It can have no application in a case like this.A writ of certiorari is unnecessary in this case, as the exceptions are sufficient to being up the full record, and to raise all questions which the respondent desires to present.Section 1025 has no reference to writs of error.Hence their use in this respect remains the same as before the law of that section was enacted —not appropriate except where the county court exercises its jurisdiction substantially according to the course of the common law.Beckwith v. Houghton, 11 Vt. 602;Stiles v. Windsor, 45 Vt. 520.

It is conceded by counsel for the respondent that the findings of fact by the court below are conclusive, and the authorities are abundant as to this.It is also conceded that the power to punish for contempt is inherent in courts of law, and their action is not reviewable if within their jurisdiction.The power to punish for contempt is a discretionary power, and must be fairly exercised, and when so exercised in a case within the jurisdiction of the court no review can be had.So, really, the only question here is as to the jurisdiction of the court.

The grand jury was engaged in the investigation of an alleged breach of a criminal statute by certain persons in this state, and in the course of those inquiries an order was made upon the respondent company by the court, under the provisions of the statute, to produce the books and papers mentioned in the order.The company produced some books and papers, but not all those required, and, the grand jury having reported to the court the neglect of the company to produce the requisite documents, a complaint was filed by the Attorney General, and the company was summoned before the court to show cause why it should not be dealt with for contempt.These proceedings were had in pursuance of a statute of this state passed by the Legislature at its session held in 1906(Laws 1906, p. 79, No. 75) the first section of which is as follows: "Any corporation doing business within this state whether organized under the laws of this or any other state or country, shall, when notice thereof is served upon it according to the provisions of this act, produce before any court, grand jury, tribunal or commission, acting under the authority of this state, all of the books, documents, correspondence, memoranda, papers and data which may contain any account of, reference to, or information concerning, the suit, proceeding, action, charge, or subject of inquiry pending before, or to be heard or determined by such court, grand jury, tribunal or commission, and which have at any time been made or kept within the state of Vermont, and are in the custody or control of such corporation within this state or elsewhere at the time of such notice upon it."The second section(page 80) is identical with the first, except that the books and papers mentioned are limited to those "which in any way relate to, or contain entries, data or memoranda concerning any transaction within the state of Vermont or with any party residing or having a place of business within the state of Vermont."The third section relates to the manner of service of the order to produce.The fourth provides for punishment for contempt in ease of noncompliance with the order, and that execution may issue for the collection of any fine imposed.These sections are all that are of importance in this case.

The respondent claims that the court had no jurisdiction because the statute is unconstitutional.It is claimed that this statute contravenes the provisions of the tenth and eleventh articles of the Constitution of Vermont, and of the fourteenth amendment to the Constitution of the United States.

1.It is insisted by the respondent that the act is in contravention of the eleventh article of the Constitution of Vermont, in that it authorizes a search and seizure of books and papers of a corporation, and also because it compels the production of such books and papers in court without providing compensation for the time and expense in so doing.It is claimed that the act is not restricted, as it should be, to permitting such books and papers as are admissible to be called for, but includes all in the custody or control of the corporation.The act restricts the order to such as "contain any account of, reference to, or information concerning, the suit, proceedings, action, charge or subject of inquiry, pending before, or to be heard by such court."This is about as definite and limited a provision as could be inserted in an act which could be of general use in its application to all kinds of cases likely to arise.The order in this case was limited to producing such books and papers as contained accounts or entries relating to dealings with the parties being investigated, and especially those containing certain entries specified therein, giving dates and items, to be produced and used "as may be legally admissible as evidence before said grand jury, relative to the matter of complaint pending, and then to be investigated by said grand jury," against the persons named.The act leaves it for the tribunal to determine what books and papers are needed and may be called for, in the order to be issued, and to describe them as far as practicable.The order in this case is not subject to the criticism made by the court in Carson v. Hawley, 82 Minn. 204, 84 N. W. 746, that it is so general that it does not indicate any knowledge on the part of the person demanding documentary evidence of any book or paper desired.The order indicates that the grand jury had knowledge of the dates, and of many items they wished to verify by the books and papers, and these were plainly stated in the order.It required no undue and improper inquisition into the affairs of the company.By comparison with the items and dates given in the order, the books could easily have been found.The court in its findings of fact says: "It is conceded by the defendant company that before and on the 22d of August last it had in its possession and subject to its control the papers that it was subsequently notified to produce before...