Cumberland Telephone & Telegraph Co. v. State , 98 Miss. 159 ( 1910 )

Smith, J.,

delivered the opinion of the court.

This is an appeal taken from a judgment in the court below imposing .a fine upon appellant, a foreign corporation, for purchasing the plant of a competing corporation, in the city of Meridian, in violation of the anti-trust laws of the state. After the institution of the suit, appellee filed interrogatories, addressed to appellant, under the provisions of § 1938 of the Code, and requested appellant to file with its answers copies of all writings in its possession relating to 'the alleged purchase. These interrogatories were answered by appellant, and certain letters relating to said purchase were filed as exhibits to its answers, as requested by appellee. Upon the trial of the cause, this deposition and the exhibits thereto were introduced in evidence by appellee. Thereupon appellant moved the court to withdraw the •case from the jury and render judgment in its favor, which motion was by this court overruled. At the close •of the evidence, appellant requested the court to instruct the jury to find a verdict in its favor, which instruction ■was by the court refused. The ground of this motion ;and requested instruction was that by the taking of its deposition, appellant, had been compelled to give evidence against itself relative to its alleged violation of the anti-trust laws, and consequently it could not thereafter be punished for such alleged offense.

Section 1938 of the Code, under which this deposition was taken, is as follows: “If the testimony of a party to the suit who resides out of the state be desired by the adverse party, interrogatories to him may be filed in the clerk’s office, and a copy thereof, with notice of filing, shall be given the party, or his attorney or solicitor ; and if he fail to answer such interrogatories within a reasonable time, his plea shall be dismissed, if he be plaintiff or complainant, and if he be defendant his plea nr answer may he taken off the file and judgment by default entered, or the bill be taken as confessed.” In Railroad Co. v. Sanford, 75 Miss. 862, 23 South. 355, 942, it was held that this section applies to and includes -corporations. It was therefore compulsory upon appellant to answer the interrogatories, and file the exhibits ■requested therewith.

Sections 5013 and 5014 of the Code are as follows:

“No person called as a witness in any prosecution -or proceeding to enforce the anti-trust laws of this state, "though himself a defendant therein, or an officer, attorney, agent or employe of a defendant or stockholder in a defendant corporation, shall he excused from testifying upon the ground that his evidence might criminate ■or tend to criminate himself; hut every person, otherwise competent, when called as a witness in such cases,, shall be required to testify and to disclose all facts known, to him which are pertinent to the issue.

“But the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the-person so testifying. A person so testifying shall not. thereafter be liable to indictment or presentment by information, nor to prosecution or punishment for the-offense with reference to which his testimony was given,, and may plead or prove the giving of testimony accordingly in bar of such indictment, information or prosecution. ’ ’

Section 1590 of the Code provides that the term “person,” when used in any statute, shall apply to artificial' as well as natural persons. Appellant therefore claims, that it is entitled to the immunity provided for in §§ 5013 and 5014 of the Code. Section 26 of our state-Constitution of 1890 provides: “In all criminal prosecutions the accused .... shall not be compelled to give evidence against himself,” etc. These sections of the Code were enacted in order that the state might obtain, in proceedings to enforce the anti-trust laws, the-testimony of witnesses who would, without the immunity therein provided, be exempt under the provision of this-section of the Constitution from testifying to any matters which, in the language of the statute, “might criminate or tend to criminate,” them. This immunity is granted only to parties entitled to claim the constitutional exemption. This constitutional exemption has no-application to corporations. 4 Ency. of U. S. Supreme Court Reports, 505; Hale v. Henkel, 201 U. S. 43-74, 26 Sup. Ct. 370, 50 L. Ed. 652; McAlister v. Henkel, 201 U. S. 90, 26 Sup. Ct. 385, 50 L. Ed. 671; Nelson v. United States, 201 U. S. 92, 26 Sup. Ct. 358, 50 L. Ed. 673. Therefore they are not entitled to claim the immunity provided by the two sections of the Code now under consideration. This provision of this section of' the Constitution simply guarantees to the individual his common-law right of declining to testify to anything which would criminate or tend to criminate himself, and it was never intended thereby that the state should relinquish any of its visitorial powers over corporations.

The reason for this holding cannot be better stated than in the language of Mr. Justice Brown in Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. 370, 50 L. Ed. 652, 'wherein he said: “Conceding that the witness was an officer of the corporation under investigation, and that he was entitled to assert the rights of the corporation with respect to the production of its books and papers, we are of the opinion that there is a clear distinction in this particular between an individual and a corporation, and that the latter has no right to refuse tp submit its books and papers for an examination at the suit of the state. The individual may stand upon his constitutional right as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the state or his neighbor to divulge his business,-or to open his doors to an investigation, so far as it may tend to criminate him. He owes no such duty to the state, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the state and can only be taken from- him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure, except under a warrant of the law. He owes nothing to the public so long as he does not -trespass upon their rights. Hpon the other hand, the corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the state and the limitations of its charter. Its powers are limited by law. It can make no contract not authorized by its charter. Its rights to act as a corporation are only preserved to it so long as it obeys, the laws of its creation. There is a reserved right in. the legislature to investigate its contracts and find out whether it has exceeded its powers. It would be a strange anomaly to hold that a state, having chartered a corporation to make use of certain franchises, could not, in the exercise of its sovereignty, inquire how these franchises had been employed, and whether they had been' abused, and demand the production of the corporate books and papers for that purpose.....While an individual may lawfully refuse to answer incriminating questions, unless protected by an immunity statute, it does pot follow that a corporation, vested with special privileges and franchises, may refuse to show its hand when charged with an abuse of such privileges.”

It is true that this appellant is a foreign corporation, and therefore is not subject to the general visitorial powers which the state possesses over domestic corporations; but the franchises of a foreign corporation,, doing business within this state, must be exercised in-accordance with the laws thereof, and consequently the state has the same visitorial powers over such a corporation, necessary to enable it to ascertain whether its laws have been obeyed, as it has for such purpose over a corporation of its own creation. Hale v. Henkel, supra. Certain-letters in the possession of appellant relating to-its alleged purpose were, however, called for in the interrogatories propounded to it, and produced in answer thereto. Sections 5017 and 5018 of the Code are as-follows:

“Any corporation may be required under a subpoena duces tecum served upon its president, secretary or any of its directors, to produce in court and submit to inspection upon the trial of any proceeding, civil or criminal, under the anti-trust laws of this state, any books, minntes, records, papers, documents, vouchers or writings belonging to or- in the possession of such corporation.

“But no corporation so producing and submitting to inspection books, minutes, records, papers, documents, vouchers or writings shall thereafter be subjected to any prosecution, pain, penalty, forfeiture, or recovery for, because or in consequence of anything revealed or disclosed by or through the inspection so had of such books, minutes, records, documents, papers, vouchers, or writings so produced under subpoena, as herein provided.”

The deposition of appellant, taken under the compulsion of section 1958 of the Code, served the same purpose that a subpoena duces tecum would have done in forcing appellant to produce the letters in its possession relating to its alleged purchase. The right to force the production of the letters under the provisions of this section was used as a substitute for such a subpoena. Consequently appellant is entitled to the immunity guaranteed in the two sections of the Code now under consideration. This immunity is not limited to parties entitled to decline to produce books, etc.; on the ground that to do so would be to furnish evidence which criminates, or tends to criminate them, but is conferred in express terms upon corporations. The immunity provided in section 5018. was not necessary, in order to enforce compliance by corporations with the provisions of section 5017; birt the law is so written, and, as written, must be enforced.

The judgment of the court below is therefore reversed, and the cause dismissed. Appellant, by reason of its production of these letters called for in the interrogatories addressed to it, is exempt from punishment on account of its alleged violation of the anti-trust law, under the provision of section 5018, supra. Reversed.