United States v. Mulligan

• Decision Date: 25 September 1920
• Citation: 268 F. 893
• Parties: UNITED STATES v. MULLIGAN.
• Court: U.S. District Court — Northern District of New York

268 F. 893

UNITED STATES v. MULLIGAN.

United States District Court, N.D. New York.

September 25, 1920

Frank J. Cregg, Sp. Asst. Atty. Gen., for United States.

Borst &amp Smith, of Schenectady, N.Y. (John H. Gleason, of Albany N.Y., of counsel), for defendant.

COOPER District Judge.

This is a demurrer to an indictment containing two counts, charging the defendant with violating section 5 of the Lever Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 3115 1/8g). These two separate counts charge the same acts of violation one on the 19th day of May, 1920, and the other on the 22d day of June, 1920. The acts constituting the violation as charged are that the defendant did unlawfully, knowingly, and willfully impede, resist, and interfere with duly authorized agents of the United States, and refused to permit them to enter and inspect the places of business of the defendant, and did refuse to furnish any information whatever as to his manner of conducting his business, or the amount of business done, or the sugar handled, or to whom sold, or any information whatever, and did refuse to allow said agents to inspect his property, his place of business, or the records of his business, stating that he kept his records in a safe, locked up, and he did not produce them.

The statute (the Lever Act) provided that it was essential to the national security and defense, and for the successful prosecution of the war, to secure an adequate supply of foods, feeds, fuel, etc., and that for such purposes the President was authorized to require that persons dealing in such necessaries should be licensed and he was authorized to prescribe regulations for the issuance of the license and requirements for the keeping of accounts of the licensee, for the inspection of his place of business, property, etc., by federal agents. The President duly issued such proclamation and prescribed regulations, which are set forth in the indictment. The defendant took out the license, and it is for failure to permit the inspection of his business and records, and specifically in preventing the federal agents from making such inspection, pursuant to the instrumentalities created by the statute, that the defendant is indicted.

The defendant demurred to the indictment on the ground of its general insufficiency and failure to state facts sufficient to constitute a crime, and more particularly on the ground that the statute and the regulations violated the Fourth, Fifth, and Sixth Amendments to the Constitution. Not much stress is laid by defendant upon the Sixth Amendment, but great stress is laid upon the Fourth and Fifth Amendments, to the Constitution. The Fifth Amendment is that no person shall be compelled in any criminal case to be a witness against himself, and the Fourth Amendment provides that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated.

It is not clear how the question of the Fifth Amendment is raised by this indictment and the demurrer thereto. The defendant has not been subpoenaed nor otherwise compelled to attend court; he has not been compelled to give oral testimony relating to himself or his conduct of the business; nor has be been compelled, or sought to be compelled, to produce in court any books or papers which might be incriminating evidence against himself. The cases cited by both sides in the brief are either criminal prosecutions against the defendant for violations of similar statutes, or contempt proceedings based upon a refusal of the defendant to produce or exhibit his books before the grand jury or upon trial. No such situation confronts the defendant here. He is indicted for failure to permit inspection of his business, property, and records and to give, out of court, information as to his business.

But, assuming that, if he were compelled to permit inspection of his books and records, and to give information, the evidence might be used against him in court, the question then arises: Does this statute and the proclamation and regulations thereunder, violate his constitutional rights under Amendments Fourth and Fifth of the Constitution? He is not a corporation and the authorities distinguishing the rights of the corporation from the individual, do not directly apply. It may also be taken for granted that in the absence of the exercise of the war powers of the government as contained in the Lever Act, if he were sought to be compelled to produce his records in court, or to testify against himself, any statute compelling him so to do would be unconstitutional, and violative of the federal Constitution.

The final question then is: Are the books and papers which defendant is compelled to keep under the statute, as a condition of doing business during the war, necessarily private papers, within the meaning of the Constitution, or are they records of a quasi public nature, which he is compelled to keep as a condition of doing business, and by the acceptance of which condition, in legal effect, he may be deemed to have waived the constitutional right which he would otherwise have.

It has been held by the Circuit Court of Appeals in this circuit that the Lever Act is constitutional. That the government is technically in a state of war, and was in such state of war at the time set forth in the indictment, and will be until a treaty of peace has been duly entered into, has been held by highest authority. Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 160, 40 Sup.Ct. 106, 64 L.Ed. 194.

No federal decision has been cited by either side which is in close analogy to the case at bar; but there are various decisions of the highest courts of several states, where a similar regulative act was under consideration, and in which a similar state constitutional provision against compelling a person to be a witness against himself was in force. In those state decisions, of course, no war-time powers of the government were involved, but the decisions were based upon the right of the state to regulate the traffic, and to require the individual to comply with certain requirements as a condition of engaging in such traffic.

In State v. Donovan, 10 N.D. 203, 86 N.W. 709, the defendant was a druggist, who was required by statute to keep a record of all sales of intoxicating liquors made by him, which should be subject to public inspection at reasonable times. It was held that the privilege against self-incrimination was not available to him with respect to the books kept under the law, for they were--

'public documents, which the defendant was required to keep, not for his private uses, but for the benefit of the public, and for public inspection.'

On similar grounds in State v. Davis, 108 Mo. 666, 18 S.W. 894, 32 Am.St.Rep. 640, the courts sustained a statute to preserve prescriptions compounded and to produce them in court when required.

The doctrine of these cases is referred to and approved by Mr Justice Hughes in deciding the case of Wilson v. United States, 221 U.S. 381382, 31 Sup.Ct. 544, 545, 55 L.Ed. 771, Ann. Cas. 1912D, 558, in which he cites various other state decisions along the same line from West Virginia, Kentucky, Iowa, Michigan, Illinois, and South Carolina, and also cites an English case arising...