is in a safe condition to be loaded and started on another long run, are not binding upon the railway company. Michigan Congress Water Co. v. Chicago & G. T. R. R., 2 Int. Com. Rep. 428, 2 I. C. C. 594 (1889).

§ 1068. Privilege against self-crimination,

A witness is protected by the constitutional provision from being compelled to disclose the circumstances of his offense, or the sources from which or the means by which evidence of its commission, or of his connection with it, may be obtained or made effectual for his conviction. A statutory enactment must afford absolute immunity against future prosecution for the offense to which a criminating question relates, in order to supplant the constitutional privilege of a person to refuse to be a witness against himself; and the provision of United States Revised Statutes, § 860, that the evidence of a person shall not be used against bim in any proceeding for a crime or penalty or forfeiture, does not take away the constitutional privilege of a person that he shall not be compelled in any criminal case to be a witness against himself. So in an investigation by a grand jury of alleged violations of the Act of Congress to Regulate Commerce of February 4, 1887, against a railway company, a person engaged in commission business is privileged, under U. S. Const. 5th amend., from answering as a witness as to whether he had obtained a rate of transportation of grain on any railroad coming from a point outside of the State, less than the tariff or open rate, and questions of a similar character, if he declines to answer on the ground that his answer might tend to criminate him. Counselman v. Hitchcock, 142 U. S. 547, 35 L. Ed. 1110, 12 Sup. Ct. 195, 3 Int. Com. Rep. 816 (1891).

As a result of this decision, the act above recited was passed; and it was held that the constitutional guaranty of protection against being compelled in any criminal case to be a witness against one's self is sufficiently satisfied by the provision of the act. Brown v. Walker, 161 U. S. 591, 40 L. Ed. 819, 16 Sup. Ct. 644, 5 Int. Com. Rep. 369 (1896). It was argued that the statute did not fully protect the witness, since his testimony might subject him to infamy and disgrace; but the court held that the fact that a witness cannot be shielded by statute from the personal disgrace or oppro brium attaching to the exposure of his crime does not render a statute exempting him from prosecution therefor insuflicient to satisfy the constitutional guaranty of protection against being compelled to be a witness against himself. "A person who commits a criminal act is bound to contemplate the consequences of exposure to his good name and reputation, and ought not to call upon the courts to protect that which he has himself esteemed to be of such little value. The safety and welfare of an entire community should not be put into the scale against the reputation of a self-confessed criminal, who ought not, either in justice or in good morals, to refuse to disclose that which may be of great public utility, in order that

his neighbors may think well of him. The design of the constitutional privilege is not to aid the witness in vindicating his character, but to protect him against being compelled to furnish evidence to convict him of a criminal charge. If he secure legal immunity from prosecution, the possible impairment of his good name is a penalty which it is reasonable he should be compelled to pay for the common good. If it be once conceded that the fact that his testimony may tend to bring the witness into disre pute, though not to incriminate him, does no entitle him to the privilege of silence, it necessarily follows that if it also tends to incriminate, but at the same time operates as a pardon for the offense, the fact that the disgrace remains no more entitles him to immunity in this case than in the other." It was further argued that the immunity did not extend to prosecutions in State courts. The court expressed the opinion that the statute would afford protection even in the State courts; but even if it did not the constitutional requirement would not extend to the case. The bare possibiliy that by disclosure a witness may be subjected to the criminal laws of some other sovereignty, and that he may be put to the annoyance and expense of pleading his immunity by way of confession and avoidance, notwithstanding the law has given him immunity from prosecution therefor, is not sufficient to render such immunity insufficient to satisfy the constitutional guaranty of protection against being compelled to be a witness against himself.

On the whole case, therefore, the Supreme Court held that a person could be compelled to answer. "If, as was justly observed in the opinion of the court below, witnesses standing in Brown's position were at liberty to set up an immunity from testifying, the enforcement of the interstate commerce law or other analogous acts, wherein it is for the interest of both parties to conceal their misdoings, would become impossible, since it is only from the mouths of those having knowledge of the inhibited contracts that the facts can be ascertained. While the constitutional provision in question is justly regarded as one of the most valuable preroga tives of the citizen, its object is fully accomplished by the statutory immunity, and we are therefore of opinion that the witness was compellabie to answer."

§ 1069. Production of books and papers.

The rules of the Commission for the granting of a subpoena duces tecum are thus explained by the Commission. In the courts of the United States the practice appears to be for the application for a subpoena duces tecum to be made to the court, or the judge thereof, by petition supported by affi davit, unless the petition be the official statement of a district attorney, or other prosecuting public officer, of the facts therein alleged, and the facts set out in the petition must describe the books or papers called for with

that degree of certainty which is practicable, considering all the circumstances of the case, so that the witness may be able to know what is wanted of him, and to have the books and papers at the trial, in order that they may be used if necessary before the tribunal in which the proceeding is pending. United States v. Babcock, 3 Dill. C. C. 566.

In section 869 of the Revised Statutes of the United States, a prima facie case must be made to the effect that the "paper, writing, written instrument, book or other document is in the possession or power of the witnesses, and that the same if produced will be competent and material evidence for the party applying therefor," before the subpoena duces tecum is issued.

In proceedings between parties where it is sought to compel parties who are not carriers subject to the act, or who are strangers to the proceedings, to produce books, papers, or documents, a proper rule is for an application to be made in writing to the Commission specifying, as nearly as may be, the books, papers, or documents, for the production of which the subpoena duces tecum is desired, accompanied by an affidavit that the books, papers, or documents described, are in the possession of the witness, or under his control, and setting forth facts which make a prima facie case that these contain evidence that is material and necessary to the party seeking their production, in the pending proceeding. Such a rule will not only conduce to the proper dispatch of business, and to the ends of justice, but it will guard the issue of such process against a latitude that may be useless or oppressive. Witnesses as well as parties, and frequently strangers, have rights in all such matters, and any rule upon the subject must be such as will have a due regard for the rights of all `interested, while at the same time it reaches, with proper dispatch, the ends of justice, and the rule thus indicated is one of substance and not mere form.

The test of such an application for the compulsory production of books, papers and documents is: Does it make a prima facie case that they are in the possession or under the control of the witnesses, what they are by name, description, or such reference to them or to their contents as will indicate what said books or papers are, no matter by what name they may be called by those making or holding them, and setting forth facts which show that the same, if produced, will be competent and material evidence for the party applying therefor? Rice v. Cincinnati, W. & B. R. R., 2 Int. Com. Rep. 584, 3 I. C. C. 186 (1889).

An application to the Interstate Commerce Commission for subpoenas duces tecum may be denied, as applicable to contracts and papers of third persons not before the Commission, on the ground of injustice that might be done such persons. Haddock v. Delaware, L. & W. R. R., 3 Int. Com. Rep. 302, 4 I. C. C. 296 (1891).

1070. Order to carrier to produce books.

Different principles, however, apply to the case where the Commission is asked to order production of books by the carrier. "The twelfth section of the Act to Regulate Commerce contemplates that the books' of the carrier shall be admissible in evidence for whatever light they will throw upon the transactions in question, as much so as the tariffs, schedules, rate sheets, contracts, or agreements the carrier may have made bearing in any way upon any of such transactions. These books, whether made up from shipping tickets, way bills, expense bills, or otherwise, are supposed to give the exact particulars of the consignment, showing the weight, rate, and amount of charges to be paid to the company's agent, and are put in this enduring form at the time of the consignment, as part of the transaction, upon rates that the law requires to be open and public, and thus they give a history of the details of the transaction. The relation that these books bear to every such transaction, and the attitude that those occupy in making and keeping them, under such circumstances, not only to the shipper and consignee, but to the public, would seem to fairly indicate that the rule as to a prima facie showing for their production when necessary to be used as evidence in a pending proceeding, to which the carrier is a party, should for obvious reasons not be as stringent as in the case of parties who occupy no such attitude or relation to the transactions, or who are strangers to the proceedings. It appears to us to be sufficient in such a case for the application to indicate in a general way what books of the carrier it is desired should be produced, and that there is reason to believe, and that 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 in the proceeding, and as an evidence of good faith in making the application, the applicant should make an affidavit as part of the application, that such application is made in good faith, and not for the purpose of vexing or harassing the defendant, and that, generally speaking, upon such a showing as this the process should issue for the production of the books, unless the number of books called for should be so large, or from other exceptional circumstances, the Commission should order the testimony to be taken at such place as would avoid oppression in producing the books at a far-distant hearing, and expedite the progress of the investigation. We have seen cases in our experience where carriers, at the instance of complaining petitioners, were required to produce their books at a distance of hundreds of miles for the purposes of evidence at a hearing and when thus produced were not even opened by those at whose earnest call they were brought; and it would seem that there ought to be some safeguard in the shape of a rule." Bragg, Commissioner, in Rice v. Cincinnati W. & B. R. R., 2 Int. Com. Rep. 584, 594, 3 I. C. C. 186 (1889).

§ 1071. Methods of avoiding inconvenience of producing all

books.

In order to avoid the inconvenience indicated at the end of the preceding section, various modes of procedure have been suggested by the Commission. The parties might, for example, take depositions, by consent, in advance of the hearing; or witnesses might be subpoenaed from the different companies proceeded against, and a notice served with the subpoena requiring the witness to furnish the published rates and tariffs of such company, for a specified period, and also requiring them to furnish statements of the actual charges made and car facilities furnished, during such period, to the persons named in the application, if different from the published tariffs and schedules. The Commission, having suggested these modes of procedure, added: "If a railroad company, or its officers, should refuse to furnish the proper evidence from its books in some such reasonable manner as is here indicated, it might then become necessary to resort to harsher proceedings, either by an examination of its books by a representative of the Commission, or by requiring the production of the books by compulsory process, and if need be, through the exercise of the authority of the courts, as provided in the statute." Bragg, Commissioner, in Rice v. Cincinnati, W. & B. R. R., 2 Int. Com. Rep. 584, 595, 3 I. C. C. 186 (1889). He added, however, that no railroad had yet refused to exhibit its books, and a petitioner would doubtless have no difficulty in obtaining any material and proper evidence in either of the modes indicated.

§ 1072. Petitioner thus gets all material and proper evidence. The commissioner continued: "The documentary evidence called for from the books of the defendants, omitting such portions of it as we indicate to be immaterial and unimportant, according to what its import may be, may have a very legitimate bearing upon many, if not all, of the questions involved in these proceedings. They may be the best and only evidence that can be obtained upon some of these issues, and whatever information, if any, they contain upon any of these subjects the defendant carriers ought not to hesitate to furnish, and if they refuse to do this, upon a proper application, they will of course be compelled to do so by due process of law.

Every purpose, however, that can be reached in these proceedings can be attained by proving the rates actually charged, if there were any such, to certain shippers or consignees that were different from the published tariff rates, or the preferential facilities, if there were any such, that were furnished by the defendants to some shippers or consignees, and not to others, or the comparative rates on the different commodities named in the complaints, and to designated points. We do not see the necessity or importance of showing, in all the minuteness of detail specified in