Immunity of witnesses before Commission,- see post, § 20. Power of each Commission and each commissioner to compel production of books, papers, etc.,- see also post, § 45, subd. 3. Production of sworn copies in lieu of original books, papers, etc.,— see post, § 45, subd. 3.

Power of each Commission and each commissioner to subpoena witnesses, take testimony, administer oaths,-see also post, § 45, subd. 1, § 66, subd. 10.

General rules of statutory construction,— see ante, § 1, notes [23][40].

Immunity of witnesses,- see post, § 20, notes [2]-[9].

Immunity of witnesses as extending to production of books and papers, see post, § 20, note [8].

[1] Where hearings will be held.

If the number of books, etc., asked for under a subpoena duces tecum is large, or other exceptional circumstances exist, the Interstate Commerce Commission will order the testimony to be taken at such a place as will avoid oppression in producing the books at a distant hearing, and expedite the progress of the investigation.- Rice v. Cincinnati, W. & B. R. Co., 2 Inters. Com. R. 507, 584, 3 I. C. C. R. 186.

A case involving local rates will be heard by the Interstate Commerce Commission at some central point in the territory immediately affected. Delaware Grange v. N. Y. P. & N. R. Co., 1 Inters. Com. R. 649, 2 Inters. Com. R. 187, 799, 2 I. C. C. R. 309.

[2] Extent of visitorial powers.

A state has the undoubted right to inquire into all the business of a domestic railroad corporation, even though it be engaged in interstate commerce; but as to partnerships which engage in the business of carrier, the state has no such visitorial power, and can require information only as to the business carried on within the state.-State v. U. S. Exp. Co., 81 Minn. 87, 83 N. W. 465, 50 L. R. A. 667.

[3] Form of application to compel production of books and

papers.

See also, post, § 20, note [1].

In a proceeding before the North Dakota Commission as to the rates upon a certain railroad, the attorney-general as counsel to the Commission asked two witnesses, officers of the company, for certain relevant statistical data which could only have been prepared from

an actual examination of all the way bills of the company for four years, a task nearly if not quite equal to that of doing over again the entire accounting work for those years, entailing the employing of a large force of clerks, etc.- Held, that in order to sustain his request for this information, counsel must tender the company the probable expense of the labor entailed.— Northern Pac. R. Co. v. Keyes, 91 Fed. 47.

When in a proceeding between parties before the Interstate Commerce Commission, an application is made to compel the production of books, papers, etc., by one who is a party to the proceedings and a carrier engaged in interstate commerce, it is sufficient for the application to indicate in writing in a general way what books, etc., should be produced, and that there is reason to believe, and the applicant does believe, that in the course of the hearing they will become of service, on account of the light they will throw upon the questions in controversy. The applicant should make affidavit, as part of the application, that such application is made in good faith, and not for the purpose of harassing or vexing the carrier.- Rice v. Cincinnati, W. & B. R. Co., 2 Inters. Com. R. 507, 584, 3 I. C. C. R. 186.

When in a proceeding between parties before the Interstate Commerce Commission, an application is made to compel the production of books, papers, etc., by persons not interstate carriers and strangers to the proceeding, the application should be in writing, addressed to the Commission, specifying as nearly as may be the books or documents desired, and be accompanied by an affidavit that the books, etc., desired are in the possession of the witness or under his control. The affidavit should also set forth facts making a very clear and full prima facie case that the books, etc., contain evidence material and necessary to the parties seeking their production.- Rice v. Cincinnati, W. & B. R. Co., 2 Inters. Com. R. 507, 584, 3 I C. C. R. 186.

[4] When a subpoena duces tecum will be refused.

A subpoena duces tecum will not be issued to third parties where it is clear that the proof desired can be secured in other ways.- Haddock v. D. L. & W. R. Co., 3 Inters. Com. R. 123, 302, 4 I. C. C. R. 296.

[5] Relevancy as affecting compelling of testimony or production of documents.

Witnesses cannot plead the non-materiality or irrelevancy of testimony or books and papers, in order to be excused from testifying or from producing such data.- Nelson v. U. S., 201 U. S. 92, 26 Sup. Ct. R. (U. S.) 358.

Discussion of what constitutes relevant testimony and papers, under the section of the Interstate Commerce Act authorizing the Circuit Court

to use its proceeds to compel the giving of testimony and the production of papers, etc.- Interst. Com. Commission v. Baird, 194 U. S. 25, 24 Sup. Ct. R. (U. S.) 563.

Where a court order calls for the production of certain books and papers by a corporation at a trial, they must be produced, but their relevancy and pertinency to the issues involved remains to be passed upon.- International Coal M. Co. v. Pa. R. Co., 152 Fed. 557.

When the state has a legal right to call upon corporations or companies for information as to their business, they cannot be permitted to determine for themselves whether they will answer or not, for the reason that it is not possible for them to do so. It is their duty in such cases to answer candidly, so far as reasonably possible, and state the facts which they claim excuse them for not answering more fully.-State v. U. S. Exp. Co., 81 Minn. 87, 83 N. W. 465, 50 L. R. A. 667.

[6] Production of books and papers by a corporation.

Whether immunity of witnesses extends to production of books and papers by corporation,- see post, § 20, note [8].

There can be no illegality in a statutory provision of a state that a corporation doing business within that state and protected by its powers may be compelled to produce before a state tribunal material evidence in the shape of books or papers kept by it in the state, and which are in its custody and control, although for the moment outside the borders of the state.- Consolidated Rendering Co. v. Vermont, 207 U. S. 541, 28 Sup. Ct. R. (U. S.) 178, affg. s. c. Vt. 66 Atl. 790.

Whether a notice to produce books and papers is broader than the state statute providing therefor allows is a question of the construction of the said statute and of the notice, and the decision of state court on this question is final.- Consolidated Rendering Co. v. Vermont, 207 U. S. 541, 28 Sup. Ct. R. (U. S.) 178, affg. s. c. Vt. -, 66 Atl. 790.

A notice to a rendering company to produce before the grand jury such books or papers as related to, or concerned any dealings or business between January 1, 1904 and the date of the notice, Oct., 1906, with the parties named therein who were state cattle commissioners charged before the grand jury with having unlawfully sold diseased meat for food purposes, is not void as lacking the necessary particularity of description of the documents required.- Consolidated Rendering Co. v. Vermont, 207 U. S. 541, 28 Sup. Ct. R. (U. S.) 178, affg. s. c. - Vt. 66 Atl. 790.

A notice to produce books and papers held not to amount to an unreasonable search and seizure of private books and documents.- Consolidated Rendering Co. v. Vermont, 207 U. S. 541, 28 Sup. Ct. R. (U. S.) 178, affg. s. c. Vt., 66 Atl. 790.

Officers of a corporation cannot refuse to produce its books, papers, etc., on the ground that such documents are not under their control.— Nelson v. U. S., 201 U. S. 92, 26 Sup. Ct. R. (U. S.) 358.

A corporation is entitled to protection against unreasonable searches and seizures of its books and papers, even under a subpoena duces tecum which is too broad and exacting in its mandates. Where an act of Congress does not authorize examination of any or all the books and papers of a corporation, a subpoena requiring production of practically all of them is unreasonable, as tending practically to stop the business of the corporation.- Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. R. (U. S.) 370.

On an investigation by the Interstate Commerce Commission as to the reasonableness of rates for the transportation of coal, contracts between railroad companies and certain coal companies which proposed the building of a competing railroad, whereby the said railroad companies purchased the collieries, are relevant evidence and their production should be compelled.- Interstate Com. Commission v. Baird, 194 U. S. 25, 24 Sup. Ct. R. (U. S.) 563.

A subpoena duces tecum commanding an officer of a railroad company to produce all letters, papers, books and memoranda as to certain claims, is not objectionable for unreasonableness.- Santa Fe Pac. R. Co. v. Davidson, 149 Fed. 603.

The secretary of a corporation cannot personally be punished for contempt for failure to produce books and papers which his superiors have entrusted to some other officer, which have never been in his possession, and which he can not obtain except by a surreptitious attempt to get them from the president's desk, or by a breach of the peace. A subpœna should have been served upon the corporation itself, and it could claim no immunity.-U. S. v. Am. Tobacco Co., No. 2, 146 Fed. 557.

A corporation may be subpoenaed to produce its books, papers, etc.U. S. v. Am. Tobacco Co., No. 2, 146 Fed. 557.

A subpoena duces tecum required a corporation to produce its minute books "from the time of its incorporation to the present day," a period of about three years, and its copy letter books for a period of about three months and a half.-Held, that such subpoena was not too broad and sweeping.— U. S. v. Am. Tobacco Co., No. 1, 146 Fed. 557.

[7] Remedy for refusal of witness to give testimony.

In a proceeding before the North Dakota commission as to rates upon a railroad which was a foreign corporation, officers of the company, on the stand, declined to compile certain statistical tables desired by the Attorney-General as counsel of the commission. He thereupon moved to strike out of their testimony in toto.- Held, that this was not the remedy counsel should have pursued. If he was entitled to this evidence, and

the witnesses refused to furnish it, his proper remedy was to apply to the federal court of the district in which the testimony was taken, for process to compel its production.- Northern Pac. R. Co. v. Keyes, 91 Fed. 47.

[8] What bodies may be vested with power to punish for contempt.

Commissions as administrative bodies,- see ante, § 4, note [15]. Congress being vested with power to regulate commerce among the states, it may establish an administrative body to investigate such commerce, and vest that body with power to call witnesses before it and to require the production of books and papers relating to the subject. The inquiry whether a witness before the commission is bound to answer a question propounded or to produce books, papers, etc., called for by that body, is a function that cannot be committed to a subordinate administrative or executive tribunal for final determination. To give it power to punish disobedience to its subpoenas would not be consistent with due process of law or our system of government. The power, except in the particular cases enumerated in the U. S. Constitution, can be exerted only by a competent judicial tribunal. A petition by the Interstate Commerce Commission to the Circuit Court, under Interst. Com. Act, § 12, asking that court to use its process in compelling the giving of testimony and the production of books and papers before the Commission is a 66 case" or controversy" to which the judicial power of the United States extends, under U. S. Const., Art. III, § 2, and that section does not impose on the courts duties not judicial in their nature, even though its effect is to aid an administrative body in the performance of its duties. Interst. Com.. Commission v. Brimson, 154 U. S. 447, 14 Sup. Ct. R. (U. S.) 1125, revg. s. c. sub. nom. In re Inters. Com. Commission, 53 Fed. 476.

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To punish for contempt is the highest exercise of judicial power, and belongs to judges of courts of record or superior courts. Where jurisdiction exists, there can be no review. This power is not an incident to the mere exercise of judicial functions, and cannot be upheld on inferences and implications, but must be expressly conferred by law.In re Mason, 43 Fed. 510.

An act of the legislature authorizing an executive officer of the state to commit a person to jail for a contempt in refusing to obey his mandate, or refusing to answer questions propounded by him to a person called before him, is unconstitutional, as a warrant to enforce such a statute would not be due process of law. People ex rel. MacDonald v. Leubischer, 34 App. Div. (N. Y.) 577, 54 N. Y. Supp. 869.

The power to punish for contempt is judicial in its nature, and only arises in a judicial proceeding and can be exercised under the law of