*544 543 notice before the grand jury on the 17th of October, 1906. On the day named, a person representing the company appeared be fore the grand jury and produced some books of account and other data, but failed to produce others which were described in the notice, and which it was therein direct Statement by Mr. Justice Peckham: This writ of error brings up for review a judgment of the supreme court of the state of Vermont, affirming a judgment of the county court of the county of Chittenden, adjudging the plaintiff in error, a corporation, hereinafter called "the company," in contempt, and fining it $3,000, for the col-ed to produce. The grand jury reported the lection of which it was ordered that execution should issue. The company in due form was served in Vermont with a notice to produce certain described books and papers before the grand jury sitting at Burlington, in that state. The notice was given pursuant to the provisions of a statute passed by the general assembly of the state, October 9, 1906. That statute provided for the service upon a corporation doing business in the state, whether organized under its laws or those of another state or country, of a notice to produce books and documents before any court, grand jury, etc., which contained any account or information concerning the subject of inquiry before the tribunal, acting under the authority of the state, and which books, etc., have at any time been made or kept within the state of Vermont, and were within the custody or control of the corporation in that state or elsewhere at the time of the service of the notice upon it. Such corporation, when notice to the above effect is served upon it, is, by the statute, directed to produce the books and papers as required. The notice is to be issued from the court or tribunal before whom the papers are required to be produced, and a general description of what is required is to be given in the notice. If the corporation, without reasonable cause, neglects or refuses to comply, "it may be punished as for contempt by the court having jurisdiction in the premises to punish for the contempt. Execution may issue for the collection of such fine as may be imposed for such contempt." This company was doing business at Burlington, Vermont, under a certificate from the secretary of state, certifying that it had complied with all the requirements of the law authorizing it to do business in the state. On the 17th of October, 1906, the grand jury was in session at Burlington, and had been investigating a complaint which had been made against certain in dividuals who were members of the Vermont cattle commission, the complaint being that such persons, or one of them, had unlawfully sold diseased meat for food purposes at Burlington. In order to continue the investigation the grand jury had caused a notice, under the above statute, to be served upon the company, directing it to produce certain books and papers described in such facts to the county court, stating in the report that the company had kept books which would have shown material facts for the purpose of the investigation, but had not produced them, as required in and by the notice, and that they were necessary for the further pursuit of the inquiry. The attorney general at the same time filed a petition to the court, containing, in substance, the same facts, and asked that the company should be proceeded against for contempt. The county court thereupon, on the 19th of October, 1906, made an order to show cause why the company should not be punished as for a contempt in failing to produce such books and papers. Upon the return of the order the company appeared by counsel and made a motion to dismiss the proceeding on the ground that the memoranda and papers called for in the notice were not legal and material evidence before the grand jury, and also because it was sought by the notice to produce, and by the other proceedings to compel the company to bring into the state of Vermont, before the grand jury, papers which might tend to criminate the company and render it liable to criminal prosecution, contrary to the provisions of the 4th, 5th, and 14th Amendments to the Constitution of the United States. Accompanying this motion to dismiss was the affidavit of counsel, in which he stated that *the papers and memoranda which the company had failed to produce before the grand jury would, if produced in evidence before the jury, tend to criminate the company and render it liable to criminal prosecution. The company also answered and admitted that it had kept at Burlington, in Vermont, such papers as were described in the notice to produce, but that, on August 20, 1906, all such books and papers were sent to the main office of the company at Boston, Massachusetts, for the purpose of examination and verification, and that, after it was made, and long before the service of the notice, such papers or memoranda as were not pro duced before the grand jury had been destroyed at Boston. The state took issue upon the averments of the answer. Upon the hearing before the court one of the company's agents testified that the papers had been destroyed in Boston because they were of no consequence, and there was nothing in them to incriminate anybody. The court, for reasons which it stated, found that the papers wanted were material | in violation of the 14th Amendment to the to the inquiry which the grand jury was Constitution of the United States; (5) that making, and that without their presence it the statute and notice required the company was impossible to proceed to any effect to produce writings which tend to incrimwith the investigation. It further found, inate it, without extending immunity against upon all the evidence before it, that the criminal prosecution; (6) that the statute books and papers had been in possession of and notice authorized an unreasonable the company at the time they were taken search and seizure of the private books and away from the state, and the court said documents of the company; (7) that the that it failed to find that the papers were statute provided no compensation for the destroyed, and that it also failed to find time, trouble, and expense imposed upon a that they were not then in the custody and corporation in a foreign state or country of control of the company so that it could pro- collecting and sending the documents deduce them, and that, "thus failing to find, manded to the state of Vermont; and lastwe find them guilty of contempt." This ly (8) that the statute is confined in its operjudgment was affirmed by the supreme court ation to corporations, thus making an arbiof Vermont. 66 Atl. 790. trary classification, by which the company is deprived of the equal protection of the law secured by the 14th Amendment. Messrs. Albert S. Hutchinson and Freedom Hutchinson for plaintiff in error. Mr. Clarke C. Fitts for defendant in er ror. *Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court: We take the findings of fact by the state court as conclusive upon us. It therein appears that the company was duly served with a notice (which was in substance a substitute for a subpœna duces tecum) to produce books and papers required, and that they had not been destroyed, but were then under its control and custody; that the papers were material evidence upon the subject of inquiry before the grand jury, and that the company had (with some minor exceptions) omitted and refused to produce them before that body. The company had a hearing before the court, and an opportunity was given it, under the statute, to set up any reasonable cause for its failure to comply with the requirements of the notice. The court, after this hearing, found the company guilty of the contempt charged and fined it accordingly. The company insists that the proceedings were in violation of the Constitution of the United States. The objections made before us were: (1) That the notice to produce was in excess of the authority granted by the statute, and was therefore invalid; (2) that neither the statute nor the notice afforded the company an opportunity to present in court reasons why the writings demanded should not be produced; (3) that the effect of the statute is to limit a corporation in the complete dominion and control of its property situated in another state, although the corporation is not organized under the laws of the state of Vermont, and is not personally within her jurisdiction; (4) that the statute attempts to confer judicial functions upon nonjudicial bodies, The first objection made by counsel for the company is not of a Federal nature. Whether the notice to produce was broader than the statute provided for is a question of the construction of the state statute, and of the notice, and the decision of the state court is final on that question. Counsel insisted before us in discussing the second objection, that the failure to give an opportunity to be heard why the books should not be produced deprived it of duo process of law guaranteed under the 14th Amendment. Without discussing the question whether this matter comes within the meaning of due process of law, we may say that the objection to the statute is not borne out by its text. The company had, under its provisions, and by the 4th section, full opportunity to show cause before the court why it did not produce the papers, and the supreme court of Vermont has held in this case that any objection to the production of the papers, made before the grand jury, would have raised the question before that body, which it would have been its duty to report to the court for its action. Upon such question the company would have been entitled to be heard, and it was in fact heard before the court previous to any decision by the court regarding the right of the company to withhold the papers. long as a hearing is given before any proceeding is concluded to enforce the produc tion of the papers, due process of law is afforded. Simon v. Craft, 182 U. S. 427, 45 L. ed. 1165, 21 Sup. Ct. Rep. 836; Wilson v. Standefer, 184 Ú. S. 399-415, 46 L. ed. 612-619, 22 Sup. Ct. Rep. 384; New Orleans Waterworks Co. v. Louisiana, 185 U. S 336-349, 46 L. ed. 936-943, 22 Sup. Ct. Rep. 691. So ୦୯୨. *553 as well not exist if this were to be permitted. Sixth. The objection that the notice authorized by the statute amounted to an unreasonable search and seizure of the private books and documents of the company is al so not well founded. In Adams v. New York, 192 U. S. 585, 48 L. ed. 575, 24 Sup. Ct. Rep. 372, where the question was raised, the court refused to discuss the contention that the 14th Amendment made the provi sions of the 4th and 5th Amendments to the Constitution of the United States, so far as they related to the right of the people to be secure against unreasonable searches and seizures, and to be protected against being compelled to testify in a criminal case against themselves, privileges and immunities of citizens of the United States of which they could not be deprived by the action of the state, because, on an examination of the record, the court concluded that there had been no violation of this restriction, either in the unreasonable search and seizure, or by the court for failure to perform an act outside the state, ordered by a nonjudicial body, and without notice and opportunity for hearing. The last reason has already been answered by showing that a hearing is provided for before any punishment of the company for disobedience to the requirements of the notice to produce can be enforced. There can surely be no illegality in providing that a corporation doing business in the state, and protected by its power, may be compelled to produce, before a tribunal of the state, 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. The statute is in no sense a provision as to how the company shall perform its duties and obligations in other states. It directs the company doing business in the state and present therein, by its officers or some of them, to do something which it is entirely competent to do, the purpose of which is to enable the tribu-in compelling plaintiff in error to testify nal making the investigation under a state statute to perform its duty. Fourth. There is no provision in the Federal Constitution which directly or impliedly prohibits a state, under its own laws, from conferring upon nonjudicial bodies certain functions that may be called judicial. It is said that the statute, in providing for the production of books and papers, includes not only the court and grand jury, but any tribunal or commission authorized by the state. There is nothing, as we have said, in the Federal Constitution which prevents it. against himself. We are of opinion that there was no violation of such rights in the case before us, and we think it equally unnecessary to decide the question which was left undecided in the Adams Case. The objection is also made that the documents were not described with the particu larity required in the description of documents necessary to a search warrant or subpoena, and that it was not a valid paper, and created no obligation to obey the notice, which could form no justification for any proceeding for contempt, and was not due process of law. An examination of The fifth objection is also without merit, the notice to produce shows that the reeven upon the assumption that in such a quirements of the notice, while quite broad, case as this the company could take the ob- yet were limited to such books or papers jection through the witness. The court as related to, or concerned, any dealings or simply held that it could not determine business between January 1, 1904, and the whether the objection as to incrimination date of the notice, October, 1906, with the was valid until the books were produced for parties named therein, who were cattle inspection by the court, though before they commissioners of the state of Vermont, and were to be used in evidence. If, after that which papers were to be used relative to the inspection, any portion were found of that matter of complaint pending, and then and character, the court held that such portion there to be investigated by the grand jury, would be excluded. As, however, the com- in which the persons named in the notice pany failed and refused absolutely to pro- were charged with having unlawfully sold duce any of the books, with some unimpor- diseased meat for food purposes at Burlingtant exceptions, it was adjudged to have ton. The notice also gave in detail the failed to show any reasonable cause for dates and amounts of checks and vouchers such refusal to comply with the require- which the company was required to proments of the notice, and it was fined for the duce. The company refused to produce the contempt. Obviously the company could books (with the exceptions stated), and, not, by its refusal to produce the books, even if the notice had been too broad, the thereby entirely conclude the court from objection cannot be urged as to the validity any examination whatever into the sufficien- of the order adjudging the company guilty cy of the excuses for such nonproduction. of contempt. Hale v. Henkel, 201 U. S. 43, Otherwise the company could disobey at its pleasure and so prevent any inquiry into the merits of the excuses. The statute might' 50 L. ed. 652, 26 Sup. Ct. Rep. 370. But unless it can be said that the court or grand jury never has any right to call for all the books and papers, or correspondence, be- | state court that prior to the passage of tween certain dates and certain persons this act there was no adequate provision named, in regard to a complaint which is for compelling the production of books and pending before such court or grand jury, papers by a corporation, and it was held we think the objection here made is not well that the statute was designed for requiring founded. We see no reason why all such the corporation itself, as the responsible books, papers, and correspondence which re- owner and custodian, to produce the doculated to the subject of inquiry, and were mentary evidence mentioned therein, withdescribed with reasonable detail, should not out the necessity of calling upon bookkeepbe called for and the company directed to ers, managers, or other servants who may, produce them, Otherwise the state would or may not, in fact, have custody or control be compelled to designate each particular thereof at the time notice to produce is paper which is desired, which presupposes given, and to place upon the corporation an accurate knowledge of such papers, which the responsibility of seeing that such evithe tribunal desiring the papers would prob- dence called for, if in its control, is proably rarely, if ever, have. The notice is not duced. There is ample justification for the nearly so sweeping in its reach as in the classification made by the statute. case of Hale v. Henkel, supra. The judgment of the Supreme Court of the state of Vermont is affirmed. Err., V. (208 U. S. 38) ERN RESERVE UNIVERSITY et al. Courts-conflict of jurisdiction - when state jurisdiction excluded. 1. The exclusive jurisdiction of a Federal circuit court arising out of the possession of the res in a suit to foreclose a railroad mortgage may be so continued, after the delivery of the property to the purchaser under the foreclosure decree and the discharge of the receiver, by reserving in such decree jurisdiction over the property and claims in respect to it, and the right to take it again into possession and exercise again the power of sale, as to prevent a state court from thereafter decreeing a sale of the property to satisfy the lien of certain equipment bonds in a suit begun before the property was taken into the possession of the Federal court. Seventh. The next objection relates to the claim that the statute provides no compensation for the time, trouble, and expense imposed upon a corporation in a foreign state WABASH RAILROAD COMPANY, Plff. in or country in collecting and sending the documents demanded to the state of Vermont, and that it thereby takes, if enforced, pri- | ADELBERT COLLEGE OF THE WESTvate property for public use without compensation. The prohibition to that effect is found in the 5th Amendment to the Federal Constitution. Here again we meet the question whether that Amendment, because of the subsequent adoption of the 14th Amendment, applies to a state proceeding; but, for the reasons already stated, we do not find it expedient to discuss it here. We do not say that in any event a witness is entitled to compensation in order to avoid the above constitutional provision, but the supreme court in this case has held that the general law of the state in reference to the compensation of witnesses applied to this statute. The answer which the counsel for the company makes is that neither the statute nor the notice required the attendance of anyone as a witness, but was merely an order for production for which no compensation was provided, either by the statute or under the general law. But the papers cannot walk into court of themselves, and when they are brought there by virtue of the notice to produce served on the company, and they are given to some person by the company for the purpose of such production, he has a right to be sworn as to the papers which he produces, for the pur pose of identification, if nothing else, and the state court has held that he is entitled as a witness to compensation. Judgment - conclusiveness as to per sons not parties — representative suit. 2. A decree of a Federal circuit court, dis missing, for want of equity, a bill filed by several holders of railroad equipment bonds "on their own behalf as well as in behalf of all those in like interest who may come in and contribute to the expenses of, and join in the prosecution of, this suit," to obtain a sale of the railroad property to satisfy the lien of such bonds, is not a bar to the claim for a lien of holders of the equip ment bonds who were not parties to that suit. [No. 40.] uary 6, 1908. Lastly, the objection is urged that there is an arbitrary classification in the statute, Argued November 6, 7, 1907. Decided Janwhich is confined to corporations alone, and the company is thereby deprived of the equal protection of the laws secured by the 14th Amendment. There is no improper classifi cation in this regard. It is stated by the I IN ERROR to the Supreme Court of the State of Ohio to review a decree which affirmed a decree of the Court of Common 999. 68. Pleas of Lucas County, in that state, order- | cured, and the Ohio court holding (45 Ohio ing a sale of railroad property in satisfac- St. 592, 16 N. E. 110, 18 N. E. 380) that tion of a lien of certain equipment bonds. the effect of the consolidation was to create Reversed. the lien claimed. This suit was brought by See same case below, 74 Ohio St. 483, 78 the defendants in error, holders of some of N. E. 1141. the equipment bonds, in the courts of Ohio for the purpose of enforcing the lien stated. They prevailed by the judgment of the supreme court of the state, which affirmed a decree of a lower court establishing the indebtedness upon the bonds, declaring a lien to secure the payment of that indebtedness upon the property owned, subject to the mortgages hereinbefore stated, by the Toledo & Wabash Railway Company in 1865, and directing a sale of such of that property as was within the state of Ohio, in sat Statement by Mr. Justice Moody: This is a writ of error directed to the supreme court of the state of Ohio. In that court the defendants in error obtained a decree declaring that certain negotiable notes held by them, which had been made by the Toledo & Wabash Railway Company, were entitled to a lien on property once owned by that company and now owned by the plaintiff in error, and ordering a sale in satisfaction of that lien. The Federal ques-isfaction of the lien. tions presented and such facts as are The case is here upon a writ of erior to deemed material to their decision are stated the supreme court of Ohio to review this in the opinion. Mr. Rush Taggart for plaintiff in error. Messrs. John W. Warrington, John C. F. Gardner, Thomas B. Paxton, Jr., and Murray Seasongood for defendants in error judgment. There are two Federal questions, it is contended, which were erroneously decided in the court below. The plaintiff in error insists: First, that the Ohio court had no jurisdiction to render the decree en tered in the case, because the property affected by that decree was in the possession *Mr. Justice Moody delivered the opinion of a circuit court of the United States, and of the court: the questions litigated in this case were within the exclusive jurisdiction of the latter court. Second, that the decree of the circuit court of the United States for the district of Indiana in the case of Ham v. Wabash, St. L. & P. R. Co. was a final adjudication of the issues in the case at bar, binding upon the defendants in error, and conclusive against their right to maintain this suit. The defendants in error contend that these questions were not properly raised in the court below, or, if properly raised, that they are so unsubstantial as to be frivolous, and therefore move that the writ of error be dismissed. But the questions were clearly presented by the answer in the Ohio courts, the decree rendered could not have been made without deciding them against the contention of the railroad company, and we think that they are substantial and important. The motion to dismiss is therefore overruled, and we proceed to the dis In 1862 the Toledo & Wabash Railroad Company owned and operated a railroad in Ohio and Indiana, and was incorporated under the laws of both states. That part of the property situated in Ohio was then encumbered by two mortgages, one to the Farmers' Loan & Trust Company for $900,000, and one to Edwin D. Morgan, trustee, for $1,000,000. That part of the property situated in Indiana was then encumbered by two mortgages, one to the Farmer's Loan & Trust Company for $2,500,000, and one to Edwin D. Morgan, trustee, for $1,500,000. In that year the company issued and sold unsecured sealed negotiable notes to the amount of $600,000, called equipment bonds. In 1865 this company consolidated with certain Illinois railroad corporations, thus creating the Toledo, Wabash, & Western Railway Company. This consolidation was authorized by and in part effected under a statute of Ohio. The holders of the equip-cussion of the merits of the questions. ment bonds have contended that the result 1. The first question is whether a circuit of this consolidation was to give to these court of the United States had exclusive ju hitherto unsecured obligations an equitable risdiction of the issues determined by the lien upon the property of the corporation Ohio court in the case at bar. Before bewhich issued them, and that the equity of ginning the discussion of that question it is redemption of that property went into the necessary to state the facts out of which it hands of the consolidated corporation en- arises. The Toledo, Wabash, & Western cumbered by that lien. Upon this ques- Railway Company, whose property was ention this court and the supreme court cumbered, as we have seen, by mortgages of of Ohio have, in the past, arrived at oppo- the Toledo & Wabash, for $5,900,000, and by site conclusions; this court holding (114 U. the claim of lien of the equipment bonds, S. 587, 29 L. ed. 235, 5 Sup. Ct. Rep. 1081) and by other mortgages upon the property that the equipment bonds remained unse-of other corporations which entered into the |