« ForrigeFortsett »
(The pertinent part of 8 6 is given in the of the attorney general, it is admitted margin.)
that the provision for arbitration, under  In considering certain sections the facts herein shown, does not of itself of the Georgia tax laws this court held afford due process of law. But it is now in Central of Georgia R. Co. v. Wright, contended that § 7 saves the statute and 207 U. S. 127, 52 L. ed. 134, 28 Sup provides for notice and hearing. Sec. 7 Ct. Rep. 47, 12 Ann. Cas. 463, that provides : due process of law requires that after "That it shall be the duty of the county such notice as may be appropriate, the board of tax assessors to diligently intaxpayer have opportunity to be heard vestigate and inquire into the property as to the validity of a tax and the owned in the county for the purpose of  amount thereof by giving him ascertaining what property, real and perthe right to appear for that purpose sonal, is subject to taxation in the counat some stage of the proceedings. This ty and to require its proper return for case, with others, was cited with approv- taxation. al in Londoner v. Denver, 210 U. S. 373, "The said board shall have authority to 385, 52 L. ed. 1103, 1112, 28 Sup. Ct. Rep. issue subpænas for the attendance of wit708, wherein we said that if the legis- nesses and to require the production by lature of the state, instead of fixing the any person of all his books, papers, and tax itself, commits to the subordinate documents, which may throw any light body the duty of determining whether, upon the question of the existence or liaand in what amount, and upon whom, bility of property of any class for taxathe tax shall be levied, due process of tion. If any witness so subpænaed shall law requires that at some stage of the fail or refuse to produce any such books, proceedings, before the tax becomes papers, or documents, such person shall irrevocably fixed, the taxpayer must be cited by said board to appear before have the opportunity to be heard, of the ordinary of the county, etc. (Punwhich he must have notice, whether ishment as for a contempt is provided.) personal, by publication, or by some 
was twice before statute fixing the time and place of the the supreme court of Georgia (146 hearing. See 210 U. S. 385, and pre-Ga. 600, 91 S. E. 690, in which the vious cases in this court, cited on page court held that when any change is 386. See also Coe v. Armour Fertilizer made in the valuation of the propWorks, 237 U. S. 413, 425, 59 L. ed.erty, the taxpayer must be given no1027, 1032, 35 Sup. Ct. Rep. 625. tice of such change, and, if dissatisfied,
As we have understood the argument I may demand an arbitration, and have a
1 "Sec. 6. Be it further enacted by the to immediately give notice to any taxpayer authority aforesaid, That the said board of of any changes made in his returns, either county tax assessors in each county shall personally or by leaving same at his resi. meet each year within ten days from the dence or place of business, or, in case of date of the closing of the tax returns for nonresident of the county, by sending said the current year, to receive and inspect the notice through the United States mails to tax returns to be laid before them by the his last known place of address. tax receiver as hereinbefore provided. It “If any taxpayer is dissatisfied with the shall be the duty of said board to examine action of said board, he may within ten all the returns of both real and personal days from the giving of said notice in case property of each taxpayer, and if in the of residents, and within twenty days in opinion of the board any taxpayer has case of nonresidents of the county, give omitted from his returns any property that notice to said board that he demands an should be returned or has failed to l'eturn arbitration, giving at the same time the any of his property at a just and fair valua- name of his arbitrator; the board shall tion, the said board shall correct such re- name its arbitrator within three (3) days turns and shall assess and fix the just and thereafter and these two shall select a third, fair valuation to be placed on said property a majority of whom shall fix the assessand shall make a note thereof and attachments and the property on which said taxthe same to such returns. It shall be the payer shall pay taxes, and said decision duty of said board to see that all taxable shall be final, except so far as the same property within the county is assessed and may be affected by the findings and orders returned at its just and fair valuation and of the state tax commissioner as hereinafter that valuations as between the individual provided. The said arbitrators shall be taxpayers are fairly and justly equalized so freeholders of the county and shall render that each taxpayer shall pay as near as their decision within ten days from the may be, only his proportionate share of date of the naming of the arbitrator by taxes. When any such corrections, changes said board, else the decision of said board and equalizations shall have been made by shall stand affirmed and shall be binding said board, it shall be the duty of the board in the premises."
hearing before arbitrators, as provided against him. But provision was made for
and the assessment made without notice and hearopinion refers to Vestel v. Edwards, 143 ing. In that situation we are clear that Ga. 368, 85 S. E. 187, wherein it was said the case comes within the decision of this that § 6 of the act was attacked as viola- court in Central of Georgia R. Co. v. tive of the due process of law clause of Wright, supra, and kindred cases, and the Constitution for the reason, among not within that line of cases wherein the others, that the act requires the arbitra- statute has fixed the time and place of tion to be made within ten days from the hearing, with opportunity to the taxpayer date of selection of the arbitrator by the to appear and be heard upon the extent tax assessors, and without making allow and validity of the assessment against him. ance for inability to agree upon a third Entertaining this view, it follows that assessor or arbitrator, or adequate time the assessment of the board of assessors for the examination of property and the ought to have been enjoined, because $ 6 ascertainment of its value, or for any of the act, as construed and applied in other cause which might render the arbi- this case, denies to the complaining taxtration impossible within the time speci- payer due process of law. It follows that fied in the act. The court said that this the judgment of the Supreme Court of part of the act was not obnoxious to the Georgia must be reversed, and the case state or Federal Constitutions.
remanded to that court for further proIn Vestel v. Edwards the court held that ceedings not inconsistent with this opinion. the appointment of a brother of one of the Reversed. assessors as arbitrator disqualified him from acting as arbitrator, and, in considering the statute, we find no suggestion from the Georgia supreme court that a hearing (71) JULES W. ARNDSTEIN, Appt., was provided before the board of assessors. The court said that the provisions THOMAS D. MCCARTHY, United States of a previous act (1910), read in connec
Marshal for the Southern District of New
York. tion with the Statute of 1913, provided that the ordinary might appoint the third arbitrator in event of inability to agree
(See S. C. Reporter's ed. 71-73.) to such arbitrator by the two already se
Witnesses self-crimination banklected. But this case presents no such
rupt waiver. situation. The arbitrators were agreed  upon. The arbitration failed be- by filing schedules of assets and liabilities
1. An involuntary bankrupt does not, cause, within the ten-day period fixed, without objection, waive his constitutional neither of the three arbitrators would privilege to refuse to answer questions rerecede from the valuation fixed by him- specting them that might tend to incrimiself upon the property, and hence no nate and degrade him. majority award could be made. We
(For other cases, see Witnesses, V. c, in Digest
Sup. Ct. 1908.) are, therefore, unable to find in the
Witnesses self-crimination statudecisions of the supreme court of tory immunity. Georgia that that court understood 2. The constitutional protection against § 7 to provide for the notice and self-crimination was not removed by the hearing required by due process of law. Therefore, looking to the sections of the tion of provision of Bankrupt Act as to
Note.-As to who is within protecstatute for ourselves, we are forced to the conclusion that, reading the provisions to
use in criminal proceeding of testimony
given by bankrupt-see note to People gether, being parts of one and the same
v. Lay, L.R.A.1917B, 614. act, they clearly show that the board of assessors was not required to give any
Sufficiency of statutory immunity to notice to the taxpayer, nor was oppor
satify constitutional guaranty against tunity given him to be heard as of right
self-incrimination. before the assessment was finally made Earlier cases considering the ques
provision in § 7 of the Bankruptcy Act of July 1, 1898, that no testiinony given by the United States for the Southern the bankrupt shall be offered in evidence District of New York to review the deagainst him in any criminal proceeding; nial of an application for a writ of hasince this provision could not and would
Reversed and remanded not prevent the use of his testimony to search out other testimony to be used in for further proceedings. evidence against him or his property.
The facts are stated in the opinion. (For other cases, see Witnesses, v. c, in Digest Sup. Ct. 1908.)
Messrs. Rufus S. Day and William J.
Fallon argued the cause, and, with Mr. (No. 575.)
George L. Boyle, filed a brief for ap
pellant: Argued October 21 and 22, 1920. Decided Habeas corpus is the proper remedy. November 8, 1920.
2 Loveland, Bankr. $ 685; Re Watts, tion under annotation will be found in or prosecution under certain named a note attached to Interstate Commerce statutes, of which the Anti-trust Act is Commission v. Baird, 48 L. ed. U. S. one, which furnishes a sufficient immu860.
nity from prosecution to satisfy the The later cases are in accord with the constitutional guaranty, although it cases cited in the earlier note in hold may not afford immunity from prosecuing that a statute affording complete tion in the state courts for the offense immunity will deprive the witness of disclosed. Hale v. Henkel, 201 U. S. his privilege against self-incrimination. 43, 50 L. ed. 652, 26 Sup. Ct. Rep. 370; Hale v. Henkel, 201 U. S. 43, 50 L. ed. McAlister v. Henkel, 201 U. S. 90, 50 652, 26 Sup. Ct. Rep. 370; Jack v. Kan- L. ed. 671, 26 Sup. Ct. Rep. 385; Nelsas, 199 U. S. 372, 50 L. ed. 234, 26 Sup. son v. United States, 201 V. S. 92, 50 Ct. Rep. 73, 4 Ann. Cas. 689; McAllister | L. ed. 673, 26 Sup. Ct. Rep. 358. v. Henkel, 201 U. S. 90, 50 L. ed. 671, Nor does the difficulty, if any, of 26 Sup. Ct. Rep. 385; Nelson v. United procuring the testimony which a perStates, 201 U. S. 92, 50 L. ed. 673, 26 son has given on his examination before Sup. Ct. Rep. 358; Glickstein v. United a grand jury concerning an alleged vioStates, 222 U. S. 139, 56 L. ed. 128, 32 | lation of the Anti-trust Act of July 2, Sup. Ct. Rep. 71; Re Kittle, 180 Fed. 1890, render the immunity from prose946; Lockett v. State, 145 Ark. 415, 224 cution or forfeiture given by the proS. W. 952; People v. Knowles, 27 Cal. viso to the Act of February 25, 1903, App. 498, 155_ Pac. 137; Re Bell, 69 insufficient to satisfy the guaranty of Kan. 855, 76 Pac. 1129; State ex rel. the United States Constitution, 5th Jones v. Mallinckrodt Chemical Works, Amendment, against self-incrimination. 249 Mo. 702, 156 S. W. 967, affirmed in Hale v. Henkel, supra. 238 U. S. 41, 59 L. ed. 1192, 35 Sup. Ct. Hale v. Henkel, supra, it will be obRep. 671; People v. Cahill, 193 N. Y.served, holds that the statutory immu232, 20 L.R.A.(N.S.) 1084, 86 N. E. 39; nity is sufficient although it may not People ex rel. Hunt v. Lane, 132 App. I afford immunity from prosecution in Div. 406, 116 N. Y. Supp. 990, affirmed the state courts for the offense disin 196 N. Y. 520, 89 N. E. 1108; People closed. The converse of this was also v. Cassidy, 213 N. Y. 388, 107 N. E. decided in Jack v. Kansas, 199 U. S. 713, Ann. Cas. 1916C, 1009; Ex parte 372, 50 L. ed. 234, 26 Sup. Ct. Rep. 73, Muncy, 72 Tex. Crim. Rep. 541, 163 S. 4 Ann. Cas. 689; namely, that the fact W. 29; Beauregaard v. Gunnison City, that an immunity granted to a witness 48 Utah, 515, 160 Pac. 815; Flanary v. under a state statute would not preCom. 113 Va. 775, 75 S. E. 289.
vent a prosecution of such witness for The right of a witness to claim his a violation of a Federal statute did not provilege against self-incrimination af- invalidate such statute under the 14th forded by the United States Constitu- Amendment, since the danger that the tion, 5th Amendment, when examined testimony given in an examination unconcerning an alleged violation of the der the state statute (Kansas Laws Anti-trust Act of July 2, 1890, is taken 1897, chap. 265, § 10) might incrimaway by the proviso to the Act of Feb- inate the witness as a violator of the ruary 25, 1903, that no person shall be Federal Anti-trust Law, and that the prosecuted or be subjected to any pen- testimony given in the state proceeding alty or forfeiture for or on account of might possibly be used in a Federal any transaction, matter, or thing con- prosecution for a violation of such statcerning which he may testify or pro- ute, was so unsubstantial and remote duce evidence in any proceeding, suit, as not to make an imprisonment for re
190 U. S. 1, 47 L. ed. 933, 23 Sup. Ct., Constitution, which forbids him from
The appellant was afforded full legal his constitutional right to refuse to anjustification in refusing to answer ques- swer any questions that might tend to intions which he considered might tend criminate him by reason of his filing of to incriminate him, by virtue of the pro- schedules in bankruptcy proceedings, in vision of the 5th Amendment of the accordance with an order of the court. fusal to testify a deprivation of liberty of Kirby's Digest, which provided that without due process of law, where the “in all cases where two or more perstatute is construed by the state courts sons are jointly or otherwise concerned to render material only such questions in the commission of any crime or misas relate to transactions within the demeanor, either of such persons may state, and to grant full immunity from be sworn as a witness in relation to such prosecution in the state courts.
crime or misdemeanor; but the testiOne implicated in the illegal regis- mony given by such witness shall in no tration of another as a voter cannot instance be used against him in any avoid testifying as to the facts of such criminal prosecution for the registration, on the theory that he would offense.” incriminate himself, where the statute The provision of the New York Penal provides that the testimony so given Code to the effect that no person who shall not be used in any prosecution or testifies upon any investigation or proproceeding, civil or criminal, against ceeding for a violation of the statute the person testifying, and that a person relating to gambling shall be prosecuted 80 testifying shall not thereafter be lia- or subjected to any penalty or forble to indictment, prosecution, or pun- | feiture for or on account of any transishment for the offense with reference action concerning which he may testito which his testimony was given. Peo- fy or produce evidence, and that no eviple v. Cahill, 193 N. Y. 232, 20 L.R.A. dence so given or produced shall be re(N.S.) 1084, 86 N. E. 39.
ceived against him upon any criminal An immunity clause contained in an investigation or proceeding, was held, election law, which provides that “no in People ex rel. Lewisohn v. Court of witness giving evidence in any prosecu- General Sessions, 96 App. Div. 201, 89 tion or other proceeding under this act N. Y. Supp. 364, aflirmed without opinshall ever be proceeded against for any ion in 179 N. Y. 594, 72 N. E. 1148, to offense against this act or against the satisfy the constitutional guaranty other election laws, committed by him against self-incrimination. at or in connection with the same elec- And such a statute would be constition," was held in Flanary v. Com. 113 tutionally broad enough if it forbade Va. 775, 75 S. E. 289, to be coextensive any future prosecution. Re Kittle, 180 with the constitutional privilege of Fed. 946. silence.
But no immunity statute can deprive And in Lockett v. State, 145 Ark. a witness of his constitutional privilege 415, 224 S. W. 952, it was held that a unless it is as broad as the privilege witness before the grand jury investi- surrendered. United States v. Bell, 81 gating alleged election frauds could not, Fed. 830; United States v. Goldstein, on the ground that it would incriminate 132 Fed. 789; Re Hess, 134 Fed. 109; him, refuse to answer a question per- Re O'Shea, 16h Fed. 180; Ex parte taining to assessment blanks fraud- Butt, 78 Ark. 262, 93 S. W. 992; People ulently issued for the purpose of en- v. Argo, 237 Ill. 173, 86 N. E. 679; Re abling parties to vote, since he was Beer, 17 N. D. 184, 115 N. W. 672, 17 afforded ample protection under $ 3087 | Ann. Cas. 126. (As will be observed
Ensign v. Pennsylvania, 227 U. S., whether his evidence will bring him 592, 57 L. ed. 658, 33 Sup. Ct. Rep. 321; into danger of the law,-it must appear Re Podolin, 205 Fed. 563; Podolin v. that there is reasonable ground for apLesher Warner Dry Goods Co. 126 C.prehending such danger. C. A. 611, 210 Fed. 97.
Walker, 161 U. S. 591, 599,
40 L. ed. 819, 821, 5 Inters. Com. Rep. Solicitor General Frierson argued the
369, 16 Sup. Ct. Rep. 644; Re Tobias, cause and filed a brief for appellee:
Greenthal & Mendelson, supra. A bankrupt may refuse to file schedules which will tend to incriminate him.
Mr. Justice McReynolds delivered the Re Podolin, 202 Fed. 1014, 205 Fed.
opinion of the court: 563; Re Bendheim, 180 Fed. 918; Re
Holding that the petition failed to disTobias, Greenthal' & Mendelson, 215 close adequate grounds therefor, the Fed. 815.
court below denied appellant's  If he files the schedules, he waives application for a writ of habeas corpus, the privilege he might have claimed, through which he sought release from and subjects himself to all proper confinement for contempt. The cause is cross-examination related to the truth here by reason of the constitutional or falsity of the schedules as filed.
question involved. Re Tobias, Greenthal & Mendelson, The petition alleges: supra.
That having been adjudged an involA witness is not the sole judge of untary bankrupt, Arndstein was called from the earlier note, this view accords pretation of the statute. When it is with Counselman v. Hitchcock, 142 U. attempted to take away the constituS. 547, 35 L. ed. 1110, 3 Inters. Com. tional rights of a citizen and give him Rep. 816, 12 Sup. Ct. Rep. 195, and oth-in exchange a statutory immunity, that er cases following that ruling.)
which is given ought to be as broad as One may claim his constitutional the right which is taken away." privilege and refuse to answer ques- And see Ex parte Butt, 78 Ark. 262, tions as to a certain offense, although 93 S. W. 992, where it was held that the granted immunity, where the answers witness could refuse to answer the queswould tend to connect him with other tions propounded, since the answers offenses against which the immunity could be used against him in other order afforded no protection.
prosecutions against which § 3087, in Thus, a witness in an investigation Kirby's Digest (set out in Lockett v. before the grand jury of a charge of State, supra), did not protect him. bribery alleged to have been committed And since the immunity given by the by him by the paying of money to pro- provision of the Bankrupt Act of July 1, tect him in the running of gambling 1898, § 7, does not satisfy the constituhouses cannot, by virtue of an immuni- tional guaranty against self-incriminaty order issued under a statute relat- tion, the privilege may be claimed. ing to testimony pertaining to the ArndsTEIN V. McCartHY; United States offense of bribery only, be compelled to v. Goldstein, 132 Fed. 789; Re Hess, 134 answer questions as to the giving of the Fed. 109. bribe, where the answers would show So, too, in Re O'Shea, 166 Fed. 180, him to be guilty of the offense of gam- it was held, following Counselman v. bling and the keeping of gambling | Hitchcock, cited in the earlier note, houses, against prosecution for which that since U. S. Rev. Stat. § 860, did the immunity order afforded no protec- not supply a complete protection from tion; and this, although the answers all the perils against which the constituwould tend to show the offense of bribtional prohibition was designed to guard, ery. People v. Argo, 237 Ill. 173, 86 N. E. 679. The court said: “If a pro: cial pension examiner, to be examined
one subpanaed to appear before a specedure of this kind can be upheld in respect to bribery and gambling, we see
as to certain pension claims, might no reason why it might not be em claim her privilege not to answer quesployed with equal propriety in regard tions which miglit incriminate her. to any other offense. Thus construed,
An immunity statute which provides this statute could be used so as to vir- merely that the “testimony given” shall tually destroy the constitutional right not be used against a witness is insuf. of accused persons. It is the capabil. ficient, since it does not grant him absoity of abuse, and not the probability lute and unconditional immunity from of it, which is to guide in the inter- prosecution for any offense that may in