Consolidated Rendering Company v. Vermont

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 collection 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 individuals 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 notice before the grand jury on the 17th of October, 1906. On the day named, a person representing the company appeared before 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 directed to produce. The grand jury reported the 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 produced 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 to the inquiry which the grand jury was making, and that without their presence it was impossible to proceed to any effect with the investigation. It further found, upon all the evidence before it, that the books and papers had been in possession of the company at the time they were taken away from the state, and the court said that it failed to find that the papers were destroyed, and that it also failed to find that they were not then in the custody and control of the company so that it could produce them, and that, 'thus failing to find, we find them guilty of contempt.' This judgment was affirmed by the supreme court of Vermont. 66 Atl. 790.

Messrs. Albert S. Hutchinson and Freedom Hutchinson for plaintiff in error.

[Argument of Counsel from pages 545-549 intentionally omitted]

Mr. Clarke C. Fitts for defendant in error.

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court: