People ex rel. Moll v. Danziger

• Decision Date: 01 April 1927
• Docket Number: No. 177.,177.
• Parties: PEOPLE ex rel. MOLL, Chief Asst. Pros. Atty., v. DANZIGER et al.
• Court: Michigan Supreme Court

238 Mich. 39

213 N.W. 448

PEOPLE ex rel. MOLL, Chief Asst. Pros. Atty.,

v.DANZIGER et al.

No. 177.

Supreme Court of Michigan.

April 1, 1927.

Appeal from Circuit Court, Wayne County, in Chancery; De Witt H. Merriam, Judge.

Suit by the People, on the relation of Lester S. Moll, Chief Assistant Prosecuting Attorney for Wayne County, against Jacob C. Danziger and others. The trial judge dismissed the bill, and the People appeal. Reversed and remanded.

Argued before the Entire Bench.Robert M. Toms, Pros. Atty., and Engene A. Walling, Asst. Pros. Atty., both of Detroit (William W. Potter, Atty. Gen., and Harry N. Deyo, Asst. Atty. Gen., of counsel), for the People.

Miller, Baldwin & Boos, of Detroit, for appellee Cass-Henry Bldg. Co.

Monaghan, Crowley, Reilley & Kellogg, of Detroit, for appellees Jacob C. Danziger and Elsa Danziger.

FELLOWS, J.

The bill in this case is filed under Act 389, Public Acts 1925, to abate a nuisance, alleging that the premises in question were being used for the purposes of lewdness, assignation, and prostitution. Defendant Cass-Henry Building Company made a motion to dismiss on the ground that the act is unconstitutional for various reasons, among them the following:

‘That the allegations of the bill accuse this defendant of the commission of a crime and a misdemeanor, and the bill seeks to subject and expose this defendant to a penalty and a forfeiture, and that defendant cannot be compelled to make answer to any allegations which will accuse itself or admit the commission of any penalty or forfeiture; and that any provision of Act No. 389, Public Acts 1925, compelling this defendant to make answer or suffer default is unconstitutional and void.’

For this reason the trial judge held the act invalid and dismissed the bill. The state appeals. We therefore have before us these questions: May a defendant be required to answer allegations of a bill when the answer tends to criminate him? And, if not, is the act invalid for this reason, and should the bill be dismissed on this ground? The importance of these questions both to the public and to the individual require their consideration at length.

We are here dealing with the provisions of the state Constitution, the provisions of the federal Constitution not being applicable to proceedings in state courts. Twining v. New Jersey, 211 U. S. 78, 29 S. Ct. 14, 53 L. Ed. 97. Section 16, art. 2 of the Constitution of this state, provides:

‘No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law.’

In the recent case of Joslin v. Noret, 224 Mich. 240, 194 N. W. 983, we pointed out that this state was aligned with those states which had given the constitutional provision here under consideration a liberal construction, and we there held, following earlier cases, that its provisions protected a witness in the trial of a civil case from being required to give testimony which would tend to establish the violation by him of a penal statute of the state. The answer of a defendant may be read in evidence on the hearing as an admission, and an exhaustive examination of the cases and text-books satisfies us that the constitutional provision is applicable to an answer in a chancery case. We shall first consider what is said by the text-writers. 28 R. C. L. 434, thus states the rule:

‘The rights intended to be protected by the constitutional provision that no man accused of crime shall be compelled to be a witness against himself are so sacred, and the pressure toward their relaxation so great, when the suspicion of guilt is strong and the evidence obscure, that it is the duty of courts liberally to construe the prohibition in favor of personal rights, and to refuse to permit any steps tending toward their invasion. Hence, there is the well-established doctrine that the constitutional inhibition is directed not merely to the giving of oral testimony, but embraces as well the furnishing of evidence by other means than by word of mouth, the divulging, in short, of any fact which the accused has a right to hold secret.’

In Cyc. at page 1356, will be found the following:

‘As defendant in a penal action cannot be required to furnish evidence against himself, he cannot be required to file an answer specifically denying all the allegations of the petition.’

Pomeroy thus lays down the rule (1 Pomeroy's Equity Jurisprudence, § 202 [4th Ed.]):

‘As a general proposition, the discovery, in order to be granted, must be in aid of some object which a court of equity can regard with approval, or at least without disapproval, some object which is not opposed to good morals or to the principles of public policy embodied in the law. This doctrine is the foundation of several particular rules regulating the practice of discovery. The first of these particular applications of the doctrine is that a defendant in the discovery suit, or in a suit for relief as well as discovery, is never compelled to disclose facts which would tend to criminate himself, or to expose him to criminal punishment or prosecution, or to pains, penalties, fines, or forfeitures. He may refuses an answer, not only to the main, directly incriminating facts, but to every incidental fact which might form a link in the chain of evidence establishing his liability to punishment, penalty, or forfeiture.’

We quote section 1942, Storey's Equity Jurisprudence (14th Ed.):

‘In the next place, courts of equity will not entertain a bill for a discovery to aid the promotion or defence of any suit which is not purely of a civil nature. Thus, for example, they will not compel a discovery in aid of a criminal prosecution, or of a penal action, or of a suit in its nature partaking of such a character, or in a case involving moral turpitude; for it is against the genius of the common law to compel a party to accuse himself, and it is against the general principles of equity to aid in the enforcement of penalties or forfeitures.’

It will be noted that both Pomeroy and Storey refer specifically to discovery, and an examination of the cases will disclose that in a large number of them the question arose on bills for discovery, or bills which incidentally sought discovery. This, we think, should be borne in mind lest we confuse the result reached with the reason for reaching such result. The cases are quite uniform in holding that, where the bill is filed solely for discovery and the facts upon which discovery is sought are such as would tend to criminate defendant, the bill cannot be maintained at all and should be dismissed on demurrer. The bills in these cases were filed solely to require defendants to disclose by answer what they could not be required to disclose as witnesses on the stand, and sought to accomplish by indirection what could not be accomplished directly. These cases are helpful on the question now under consideration, but they should not be taken as holding that a bill seeking general equitable relief may not be maintained at all, when a defendant to answer truthfully must disclose facts which would tend to criminate himself. His rights must be protected, but the fact that his conduct has been such as to justify a criminal prosecution does not preclude the other party from seeking against him appropriate equitable relief. This is settled by our former holdings to which we will later refer.

The cases both in England and in this country are quite uniform in holding that a defendant may not be required in his answer to state facts which would tend to criminate himself. Among the English cases, see Fisher v. Owen, L. R. 8 Ch. Div. 646; Glenn v. Houston, 1 Keen, 329; Earl of Lichfield v. Bond, 6 Beav. 88; Claridge v. Hoare, 14 Ves. Jr. 59; Harrison v. Southcote, 2 Ves. Sr. 389; Attorney General v. Lucas, 2 Hare, 566; Honeywood v. Selwin, 3 Atk. 276; Smith v. Read, 1 Atk. 526; Chauncey v. Tabourden, 2 Atk. 392. Among the American cases, see United States v. Saline Bank of Virginia, 1 Pet. 100 7 L. Ed. 69;United States v. National Lead Co. (C. C.) 75 F. 94;Thompson v. Whitaker Iron Co., 41 W. Va. 574, 23 S. E. 795;Higdon v. Heard, 14 Ga. 255;Daisely v. Dun (C. C.) 98 F. 498; Stewart v. Drasha, 4 McLean, 563, Fed. Cas. No. 13,424; Poindexter v. Davis, 6 Grat. (Va.) 481;Northrop v. Hatch, 6 Conn. 361;Robson v. Doyle, 191 Ill. 566, 61 N. E. 435;Union Bank v. Barker, 3 Barb. Ch. (N. Y.) 358;Black v. Black, 26 N. J. Eq. 431;Noyes v. Thorpe, 73 N. H. 481, 62 A. 787,12 L. R. A. (N. S.) 636;Livingston v. Harris, 3 Paige (N. Y.) 528;Livingston v. Tompkins, 4 Johns. Ch. (N. Y.) 415, 8 Am. Dec. 598; Union Glass Co. v. First National Bank of New Castle, 10 Pa. Co. Ct. R. 565; State v. Simmons Hdwe. Co., 109 Mo. 118, 18 S. W. 1125,15 L. R. A. 676.

For the present we shall refer to but one of these cases, Robson v. Doyle, supra. An action at law had been brought to recover a penalty under the Illinois Criminal Code inhibiting the gambling in puts and calls on wheat. It was not brought by one who had lost any money by such deals. Other similar actions were contemplated by plaintiff. He filed a bill for discovery to require defendant to disclose his dealings in puts and calls with others. The bill was demurred to. In sustaining the demurrer it was said, among other things:

‘So far as the bill is filed to obtain evidence for the purpose of commencing suit in the future and recovering penalties from the defendant, it is bad beyond all question. That part of the bill not only seeks to compel the defendant to disclose a cause of action against himself for penalties for transgressing the law where the bill shows no cause of action whatever, but it is purely a fishing bill so far as it seeks such a discovery. It does not seem to be contended that the bill in that respect is authorized by any principle of the law or any statutory provision. * * * The suits at law are not for the recovery of anything which the complainant...