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UNITED STATES, BY McREYNOLDS, ATTORNEY GENERAL, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY.

ERROR TO AND APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT OF KENTUCKY.

No. 499. Argued January 5, 6, 1915.—Decided February 23, 1915.

No authority beyond that already conferred on the Interstate Com

merce Commission by the Act to Regulate Commerce can be derived by that Commission from a resolution passed by only one branch of Congress; and so held that the powers of the Commission in making the investigation required by Senate Resolution No. 153, in regard to inspection of accounts and other papers, are limited to those conferred by the Act to Regulate Commerce and the amendments

thereto. Section 12 of the Act to Regulate Commerce does not make provision

for inspection of accounts and correspondence of carriers authorized by the Commission; that feature was added by the Hepburn Act of

June 29, 1906, amending $ 20 of the Commerce Act. The Hepburn Act, like other statutes, may be read in the light of the

purpose it was intended to subserve, and the history of its origin and the report of the Interstate Commerce Commission submitted

to Congress recommending the passage of the Act may be referred to. As construed in the light of such report, and applying the rule of

noscitur a sociis, § 20 of the Act to Regulate Commerce does not provide for the compulsory inspection of the correspondence of carriers, but is limited to accounts, including records, documents and

memoranda. Congress is not likely to enact a sweeping provision subjecting all

correspondence of carriers to examination, attended with serious consequences in cases of withholding it, without using language ade

quate to that purpose. The protection of confidential communications between attorney and

client is well known and recognized as a matter of public policy. The right of inspection of whatever accounts, records, documents and

memoranda are included within § 20 of the Act to Regulate Commerce, as amended by the Hepburn Act, is not limited to those kept and made after the passage of the latter Act, but includes those kept and made prior thereto.

236 U.S. Argument for United States and Interstate Com. Comm.

Quære, whether compulsory inspection of correspondence and other

matters referred to in Senate Resolution No. 153 of Nov. 6, 1913,

can be permitted within the constitutional rights of the carrier. Where the Interstate Commerce Commission has applied for a writ of

mandamus broader than the law permits, and no amendment was made narrowing the demand, but the petition was dismissed without prejudice, the proper practice is to affirm the order and not to reverse so as to grant the relief within the limits which the law al

lows; a new proceeding may be started for that purpose. 212 Fed. Rep. 486, affirmed.

The facts, which involve the power of the Federal court to require the production of testimony, books and papers by a carrier under the provisions of the AntiTrust Act in a proceeding started by the Interstate Commerce Commission pursuant to a resolution of the Senate of the United States, are stated in the opinion.

The Solicitor General, with whom Mr. Theodor Megaarden was on the brief, for the United States, and Mr. Joseph W. Folk for the Interstate Commerce Commission:

The scope and purpose of the pending investigation is within the purview of the Commerce Act and within the power and jurisdiction of the Commission,

Information of the relations existing between carriers is indispensable and necessary for the performance by the Commission of its proper duties.

The preservation of competition is one of the purposes of the Act, and its existence or non-existence bears directly upon the questions of discrimination, reasonableness of rates, and similar matters. Gerke Brewing Co. v. Louis. & Nash. R. R., 5 I. C. C. 596, 606; Int. Com. Comm. v. Balt. & Ohio R. R., 145 U. S. 263, 276.

It is also important to ascertain whether charges fixed by a carrier are just and reasonable within $ 1 of the Act. Int. Com. Comm. v. Chi. Gr. West. Ry., 209 U. S. 108, 119.

The matter of competition is also to be considered in applying the provisions of $$ 3 and 4 with reference to

Argument for United States and Interstate Com. Comm. 236 U. S.

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undue or unreasonable preference to persons, etc., and the long and short haul clause. Int. Com. Comm. v. Alabama Midland Ry., 168 U. S. 144, 164.

The subject is likewise material in connection with § 5 (pooling section) of the Act. Central Yellow Pine Ass'n v. Ill. Cent. R. R., 10 I. C. C. 505; East Tenn. &c. Ry. v. Int. Com. Comm., 99 Fed. Rep. 52, 61.

Whether a carrier is subject to the Act at all frequently depends upon the relation between it and other carriers. Cincinnati &c. Ry. v. Int. Com. Comm., 162 U. S. 184.

The inquiry of the Commission is proper as a basis for legislative recommendations, for legal prosecutions, and for many other purposes. Int. Com. Comm. v. Brimson, 154 U. S. 447, 474; Int. Com. Comm. v. Goodrich Transit Co., 224 U. S. 194, 208.

The inquisitorial work of the Commission has been the basis of practically all congressional legislation affecting interstate carriers during the past 25 years. Where the persons and subjects under consideration are within the field of the Commission's lawful activities, the courts will not inquire as to the ultimate object of the investigation.

As to the plenary power of the Commission see Int. Com. Comm. v. Brimson, supra.; Int. Com. Comm. v. Goodrich Transit Co., supra.; Tex. & Pac. Ry. v. Abilene Cotton Oil Co., 204 U. S. 426, 438.

Even if the investigation should divulge violations of the Anti-Trust Act rather than of the Act to Regulate Commerce, that would not end the Commission's power. Int. Com. Comm. v. Louis. & Nash. R. R., 227 U. S. 88, 93.

In the course of this investigation the Commission was entitled to inspect the accounts, records, and memoranda, including correspondence, of the carrier and no peculiar privilege attends the so-called private and confidential correspondence between its officers and agents. Grant v. United States, 227 U. S. 74; Wheeler v. United States, 226 U. S. 478; Wilson v. United States, 221 U. S.

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236 U. S. Argument for United States and Interstate Com. Comm.

361. This is shown by the fact (otherwise unnecessary) that Congress makes it an offense for an examiner to divulge any information which may come to him during the course of an examination.

The privilege asserted as to the correspondence between the carrier and its attorneys is no warrant for refusing the writ as to other documents. The proposed examination is not an unreasonable search and seizure, nor does it violate any constitutional right of the carrier.

A corporation is not entitled to plead the immunity of the Fifth Amendment, and it is doubtful whether it can plead the immunity of the Fourth Amendment. Hale v. Henkel, 201 U. S. 43, 74; Int. Com. Comm. v. Baird, 194 U. S. 25. A corporation cannot restrict the production of its books and papers on the ground of self-crimination. Wilson v. United States, 221 U. S. 361, 382.

While an order calling for the production of such a large part of the records of a corporation that their absence will put a stop to the business of the company may constitute an unreasonable search and seizure, Hale v. Henkel, supra, this has no application to the case at bar, since the Commission seeks only to inspect the records of the defendant in error.

Having the power to regulate, Congress must also be held to have the power to determine what means are appropriate for carrying into effect its control. Flint v. Stone-Tracy Co., 220 U. S. 107, 176.

The right to inspect accounts, records, and memoranda, including correspondence, is not limited to those only which have come into being since August 28, 1906, but extends to all those in the possession of the carrier whenever created. This does not make the Act retrospective in a legal sense. Society v. Wheeler, 2 Gall. 104; Sturges v. Carter, 114 U. S. 511.

The intent of the Act is to afford access to preëxisting documents. Even if, when so construed, it can properly

VOL. CCXXXVI–21

Argument for Defendant in Error and Appellee. 236 U. S.

be called retrospective, it is none the less within the power of Congress.

There are no constitutional restrictions upon Congress in the matter of retrospective legislation as there are in some of the States. Satterlee v. Matthewson, 2 Pet. 380; Sinking-Fund Cases, 99 U. S. 700.

The main purpose of the Hepburn Act was to provide more adequate means for the enforcement of rights and duties declared to exist, and the Act impairs no existing rights or obligations, but, on the contrary, is a means of their effective enforcement.

Mr. Helm Bruce, with whom Mr. Henry L. Stone, Mr. William A. Colston and Mr. Edward S. Jouett were on the brief, for defendant in error and appellee:

The inquiry directed by the Commission was limited by its terms; and the examiners had no right to go beyond those limits.

The Commission had no authority to make the examination it sought to make. Traders' Union v. Philadelphia R. R., 1 I. C. C. 374; New York Produce Exch. v. Balt. & Ohio R. R., 7 I. C. C. 658; Sprigg v. Balt. & Ohio R. R., 8 I. C. C. 456; Haines v. Chi. & Rock Isl. R. R., 13 I. C. C. 214; Tex. & Pac. Ry. v. Int. Com. Comm., 162 U. S. 216, 221; United States v. Pacific & Arctic Co., 228 U. S. 87; Harriman v. Int Com. Comm., 211 U. S. 418.

There are differences in the purposes of the Act to Regulate Commerce and the Anti-Trust Act. Cin., N.O. & T. P.R. R. v. Int. Com. Comm., 162 U. S. 197; No. Sec. Co. v. United States, 193 U. S. 331; United States v. Freight Ass'n, 166 U. S. 315; United States v. Joint Traffic Ass'n, 171 U. S. 565.

The inquiry sought to be made by the Commission concerned conditions regulated by the Sherman AntiTrust Act, but not by the Interstate Commerce Act.

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