SECTION 12.

§ 343. General investigating powers of commission. 344. Amendments of the section.

345. Compelling of self-incriminating testimony.

346. Corporations not included in immunity of witness.

347. Immunity acts of February 25, 1903 and June 13, 1906.

348. Corporate official compelled to produce corporate books containing personally incriminating matter.

349. Probative effect of self-incriminating testimony.

350. Immunity is limited to the subject of testimony.

351. Power of the court to enforce testimony before the commission sustained.

852. Relevancy of testimony before the commission.

353. Limitation of the power of the commission to enforce testimony. 354. Investigating powers of a grand jury in the United States courts. 355. General powers of the commission.

[Power and duty of Commission to inquire into business of
carriers and keep itself informed in regard thereto.]

§ 343 General investigating powers of commission.-SEC. 12. (As amended March 2, 1889, and February 10, 1891.) That the Commission hereby created shall have authority to inquire into the management of the business of all common carriers subject to the provisions of this Act, and shall keep itself informed as to the manner and method in which the same is conducted,

[Commissions required to execute and enforce provisions of
this Act.]

and shall have the right to obtain from such common carriers full and complete information necessary to enable the Commission to perform the duties and carry out the objects for which it was created; and the Commission is hereby authorized and required to execute and enforce the provisions of this Act; and, upon the request of the Commission, it shall be the duty of any

[Duty of district attorney to prosecute under direction of

Attorney-General.]

district attorney of the United States to whom the Commission may apply to institute in the proper court and to prosecute under the direction of the Attorney-General of the United States all necessary proceedings for the enforcement of the provisions of this Act and for the punishment of all violations thereof, and the

[Costs and expenses of prosecution to be paid out of appro-
priation for courts.]

costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States; and for the purposes of this Act the Commission shall have

[Power of Commission to require attendance and testimony
of witnesses and production of documentary evidence.]

power to require, by subpoena, the attendance and testimony of witnesses and the production of all books, papers, tariffs, con

tracts, agreements, and documents relating to any matter under investigation.

[Commission may invoke aid of courts to compel witnesses

to attend and testify.]

Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpoena the Commission, or any party to a proceeding before the Commission, may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of books, papers, and documents under the provisions of this section.

[Penalty for disobedience to order of the court.]

And any of the circuit courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any common carrier subject to the provisions of this Act, or other person, issue an order requiring such common carrier or other person to appear before said Commission (and produce books and papers if so ordered) and give evidence touching the matter in ques

[Claim that testimony or evidence will tend to criminate will
not excuse witness.]

tion; and any failure to obey such order of the court may be punished by such court as a contempt thereof. The claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying; but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding.

[Testimony may be taken by deposition.]

The testimony of any witness may be taken, at the instance of a party in any proceeding or investigation pending before the Commission, by deposition, at any time after a cause or proceed

[Commission may order testimony to be taken by deposi

tion.]

ing is at issue on petition and answer. The Commission may also order testimony to be taken by deposition in any proceeding or investigation pending before it, at any stage of such proceeding or investigation. Such depositions may be taken before any judge of any court of the United States, or any commissioner of a circuit, or any clerk of a district or circuit court, or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court, or court of common pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor

[Reasonable notice must be given.]

interested in the event of the proceeding or investigation. Reasonable notice must first be given in writing by the party, or his attorney, proposing to take such deposition to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place

of the taking of his deposition. Any person may be compelled

[Testimony by deposition may be compelled in the same
manner as above specified.]

to appear and depose, and to produce documentary evidence, in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the Commission as herein before provided.

[Manner of taking depositions.]

Every person deposing as herein provided shall be cautioned and sworn (or affirm, if he so request) to testify the whole truth, and shall be carefully examined. His testimony shall be reduced to writing by the magistrate taking the deposition, or under his direction, and shall, after it has been reduced to writing, be subscribed by the deponent.

[When witness is in a foreign country.]

If a witness whose testimony may be desired to be taken by deposition be in a foreign country, the deposition may be taken before an officer or person designated by the Commission, or [Depositions must be filed with the Commission.]

agreed upon by the parties by stipulation in writing to be filed with the Commission. All depositions must be promptly filed with the Commission.

[Fees of witnesses and magistrates.]

Witnesses whose depositions are taken pursuant to this Act, and the magistrate or other officer taking the same, shall severally be entitled to the same fees as are paid for like services in the courts of the United States.

8 344. Amendments of the section.-Section 12 was not changed in the amendatory acts of 1906 and 1910, but it was amended by the act of March 2, 1889, and again on February 10, 1891, in respect to the duties of the district attorney and the provisions for the summoning of witnesses. It has also been materially amended and enforced by the acts of 1893, 1903, and 1906 concerning self incriminating testimony.

§ 345 (263). The compelling of self-incriminating testimony. The most important judicial discussion under this section has been in relation to the power of enforcing self-incriminating testimony. The provision of the third paragraph of the section, that a party could be compelled to give self-incriminating testimony, but providing that the evidence given by him should not be used against him, was held in Counselman v. Hitchcock, 142 U. S. 547, 35 L. Ed. 1110 (reversing 44 Fed. Rep. 271), to be unconstitutional as violative 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. The court disapproved the decision of the New York court of appeals in People v. Kelley, 24 N. Y. 74, which held the immunity in a similar statute sufficient, and ruled that the statutory enactment to be valid must afford absolute immunity against further prosecutions. The petitioner who had declined to answer, whether he had received a rebate or not, on the ground that it would incriminate him, was discharged on habeas corpus. After this decision, the statute was amended by the passage of the act of February 11, 1893, as follows:

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, whether such subpoena be signed or issued by one or more Commissioners, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of the act of Congress, entitled "An act to regulate commerce," approved February fourth, eighteen hundred and eighty-seven, or of any amendment thereof 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 subpana of either of them, or in any such case or proceeding: Provided, That no person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying.

Any person who shall neglect or refuse to attend and testify, or to answer any lawful inquiry, or to produce books, papers, tariffs, contracts, agreements and documents if in his power to do so, in obedience to the subpoena or lawful requirement of the Commission shall be guilty of an offense and upon conviction thereof by a court of competent jurisdiction shall be punished by fine not less than one hundred dollars nor more than five thousand dollars, or by imprisonment for not more than one year or by both such fine and imprisonment.

The act of 1893 was sustained in Brown v. Walker, 161 U. S. 591, 40 L. Ed. 819 (1896), the supreme court holding that if afforded absolute immunity against prosecutions, federal or state, for the offense to which the question related, and there

fore deprived the witness of his constitutional right to decline to answer. (Justices Shiras, Gray, White and Field dissenting on the ground that the state courts would not be compelled to accept the saving clause of the federal statute in respect to crimes against the state.) This amendment of 1893 only refers to testimony before the Interstate Commerce Commission, and does not refer to testimony given before a court in a suit brought under the provisions of sections 8 and 9 of the act. The decision in the Counselman Case would clearly apply to the provision of section 9, providing that self-incriminating testimony forced from a witness should not be used against him.

The Amendatory Act of February 19, 1903, known as the Elkins Act, in section 3 specifically provides:

"In proceedings under the act the courts shall have the power to compel the attendance of witnesses both upon the part of the carrier and shipper who should be required to answer on all subjects relating directly or indirectly to the matter in controvers", and to compel the production of all books and papers both of the carrier and shipper which relate directly and indirectly to such action. The claim that such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such person from testifying or such corporation from producing its books or papers; 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, in such proceeding."

The same provision of immunity is, therefor, extended to all witnesses, whether before a commission or court, who are compelled to give self incriminating testimony under the act.

§ 316 (264). Corporations not included in immunity of witness.--In a prosecution under section 10, before the amendments of 1903, it was held that corporations could not be indicted. as the only parties punishable thereunder were individuals; an official could not therefore excuse himself from testifying on the ground that his testimony would implicate the corporation, his employer. In re Peasley, 44 Fed. 271 (1890). In a prosecution under section 5 of the act, whereunder pooling between carriers is made unlawful, and each day of its continuance made a separate offense, indictments