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hearing before arbitrators, as provided for in the act, and that such hearing gave due process of law. In 147 Ga. 666, 95 S. E. 220, the previous decision is affirmed, and it was again held that where any change is made in the valuation of the property of a taxpayer, he must be given notice of the change, and, if dissatisfied, demand arbitration and a hearing before arbitrators, as provided in the act; and the opinion refers to Vestel v. Edwards, 143 Ga. 368, 85 S. E. 187, wherein it was said that § 6 of the act was attacked as violative of the due process of law clause of the Constitution for the reason, among others, that the act requires the arbitration to be made within ten days from the date of selection of the arbitrator by the tax assessors, and without making allowance for inability to agree upon a third assessor or arbitrator, or adequate time for the examination of property and the ascertainment of its value, or for any other cause which might render the arbitration impossible within the time specified in the act. The court said that this part of the act was not obnoxious to the state or Federal Constitutions.

In Vestel v. Edwards the court held that the appointment of a brother of one of the 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 was provided before the board of assessors. The court said that the provisions of a previous act (1910), read in connection with the Statute of 1913, provided that the ordinary might appoint the third arbitrator in event of inability to agree to such arbitrator by the two already selected. But this case presents no such situation. The arbitrators were agreed [70] upon. The arbitration failed because, within the ten-day period fixed, neither of the three arbitrators would recede from the valuation fixed by himself upon the property, and hence no majority award could be made. We are, therefore, unable to find in the decisions of the supreme court of Georgia that that court understood

7 to provide for the notice and hearing required by due process of law. Therefore, looking to the sections of the

statute for ourselves, we are forced to the conclusion that, reading the provisions together, being parts of one and the same act, they clearly show that the board of assessors was not required to give any notice to the taxpayer, nor was opportunity given him to be heard as of right before the assessment was finally made

against him. But provision was made for notice of the assessment to the taxpayer after it was made, and in event of his dissatisfaction the arbitration was to afford a hearing to him. Such hearing was all that the statute contemplated that the taxpayer should have.

In the present case, as the facts already stated show, the taxpayer is subject to an assessment made without notice and hearing. In that situation we are clear that the case comes within the decision of this court in Central of Georgia R. Co. v. Wright, supra, and kindred cases, and not within that line of cases wherein the statute has fixed the time and place of hearing, with opportunity to the taxpayer to appear and be heard upon the extent and validity of the assessment against him.

Entertaining this view, it follows that the assessment of the board of assessors ought to have been enjoined, because § 6 of the act, as construed and applied in this case, denies to the complaining taxpayer due process of law. It follows that the judgment of the Supreme Court of Georgia must be reversed, and the case remanded to that court for further proceedings not inconsistent with this opinion. Reversed.

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tory immunity. 2. The constitutional protection against self-crimination was not removed by the

tion of provision of Bankrupt Act as to Note. As to who is within protecgiven by bankrupt-see note to People use in criminal proceeding of testimony v. Lay, L.R.A.1917B, 614.

Sufficiency of statutory immunity to satify constitutional guaranty against self-incrimination.

Earlier cases considering the ques

provision in § 7 of the Bankruptcy Act of A

PPEAL from the District Court of July 1, 1898, that no testimony 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. [For other cases, see Witnesses, V. c, in Digest Sup. Ct. 1908.]

[No. 575.]

Argued October 21 and 22, 1920. Decided November 8, 1920.

tion under annotation will be found in a note attached to Interstate Commerce Commission v. Baird, 48 L. ed. U. S. 860.

The later cases are in accord with the cases cited in the earlier note in holding that a statute affording complete immunity will deprive the witness of his privilege against self-incrimination. Hale v. Henkel, 201 U. S. 43, 50 L. ed. 652, 26 Sup. Ct. Rep. 370; Jack v. Kansas, 199 U. S. 372, 50 L. ed. 234, 26 Sup. Ct. Rep. 73, 4 Ann. Cas. 689; McAllister v. Henkel, 201 U. S. 90, 50 L. ed. 671, 26 Sup. Ct. Rep. 385; Nelson v. United States, 201 U. S. 92, 50 L. ed. 673, 26 Sup. Ct. Rep. 358; Glickstein v. United States, 222 U. S. 139, 56 L. ed. 128, 32 Sup. Ct. Rep. 71; Re Kittle, 180 Fed. 946; Lockett v. State, 145 Ark. 415, 224 S. W. 952; People v. Knowles, 27 Cal. App. 498, 155 Pac. 137; Re Bell, 69 Kan. 855, 76 Pac. 1129; State ex rel. Jones v. Mallinckrodt Chemical Works, 249 Mo. 702, 156 S. W. 967, affirmed in 238 U. S. 41, 59 L. ed. 1192, 35 Sup. Ct. Rep. 671; People v. Cahill, 193 N. Y. 232, 20 L.R.A.(N.S.) 1084, 86 N. E. 39; People ex rel. Hunt v. Lane, 132 App. Div. 406, 116 N. Y. Supp. 990, affirmed in 196 N. Y. 520, 89 N. E. 1108; People v. Cassidy, 213 N. Y. 388, 107 N. E. 713, Ann. Cas. 1916C, 1009; Ex parte Muncy, 72 Tex. Crim. Rep. 541, 163 S. W. 29; Beauregaard v. Gunnison City, 48 Utah, 515, 160 Pac. 815; Flanary v. Com. 113 Va. 775, 75 S. E. 289.

The right of a witness to claim his provilege against self-incrimination afforded by the United States Constitution, 5th Amendment, when examined concerning an alleged violation of the Anti-trust Act of July 2, 1890, is taken away by the proviso to the Act of February 25, 1903, that no person shall be prosecuted or be subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence in any proceeding, suit,

beas corpus.

The facts are stated in the opinion.

Messrs. Rufus S. Day and William J. Fallon argued the cause, and, with Mr. George L. Boyle, filed a brief for appellant:

Habeas corpus is the proper remedy. 2 Loveland, Bankr. § 685; Re Watts, or prosecution under certain named statutes, of which the Anti-trust Act is one, which furnishes a sufficient immunity from prosecution to satisfy the constitutional guaranty, although it may not afford immunity from prosecution in the state courts for the offense disclosed. Hale v. Henkel, 201 U. S. 43, 50 L. ed. 652, 26 Sup. Ct. Rep. 370; McAlister v. Henkel, 201 U. S. 90, 50 L. ed. 671, 26 Sup. Ct. Rep. 385; Nelson v. United States, 201 U. S. 92, 50 L. ed. 673, 26 Sup. Ct. Rep. 358.

Nor does the difficulty, if any, of procuring the testimony which a person has given on his examination before a grand jury concerning an alleged violation of the Anti-trust Act of July 2, 1890, render the immunity from prosecution or forfeiture given by the proviso to the Act of February 25, 1903, insufficient to satisfy the guaranty of the United States Constitution, 5th Amendment, against self-incrimination. Hale v. Henkel, supra.

Hale v. Henkel, supra, it will be observed, holds that the statutory immunity is sufficient although it may not afford immunity from prosecution in the state courts for the offense disclosed. The converse of this was also decided in Jack v. Kansas, 199 U. S. 372, 50 L. ed. 234, 26 Sup. Ct. Rep. 73, 4 Ann. Cas. 689; namely, that the fact that an immunity granted to a witness under a state statute would not prevent a prosecution of such witness for a violation of a Federal statute did not invalidate such statute under the 14th Amendment, since the danger that the testimony given in an examination under the state statute (Kansas Laws 1897, chap. 265, § 10) might incriminate the witness as a violator of the Federal Anti-trust Law, and that the testimony given in the state proceeding might possibly be used in a Federal prosecution for a violation of such statute, was so unsubstantial and remote as not to make an imprisonment for re

190 U. S. 1, 47 L. ed. 933, 23 Sup. Ct., Constitution, which forbids him from Rep. 718, 14 Am. Crim. Rep. 48; Ex being compelled to be a witness against parte Lange, 18 Wall. 163, 21 L. ed. himself; and this is true regardless of 872; Ex parte Rowland, 104 U. S. 604, § 7, ¶ 9, of the Bankruptcy Act, which 26 L. ed. 861; Ex parte Fiske, 113 U. S. provides that no testimony given by the 713, 28 L. ed. 1117, 5 Sup. Ct. Rep. 724; bankrupt shall be offered in evidence Re Ayers, 123 U. S. 443, 31 L. ed. 216, against him in any criminal proceedings. 8 Sup. Ct. Rep. 164; Re Lane, 135 U. Counselman v. Hitchcock, 142 U. S. S. 443, 34 L. ed. 219, 10 Sup. Ct. Rep. 547, 35 L. ed. 1110, 3 Inters. Com. Rep. 760; Re Tyler, 149 U. S. 164, 37 L. ed. 816, 12 Sup. Ct. Rep. 195; 1 Burr's 689, 13 Sup. Ct. Rep. 785; Re Bonner, Trial, 244; Boyd v. United States, 116 151 U. S. 242, 38 L. ed. 149, 14 Sup.. Ct. U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. Rep. 323; Re McKenzie, 180 U. S. 536, 527. 45 L. ed. 657, 21 Sup. Ct. Rep. 468.

The appellant was afforded full legal justification in refusing to answer questions which he considered might tend to incriminate him, by virtue of the provision of the 5th Amendment of the fusal to testify a deprivation of liberty without due process of law, where the statute is construed by the state courts to render material only such questions as relate to transactions within the state, and to grant full immunity from prosecution in the state courts.

One implicated in the illegal registration of another as a voter cannot avoid testifying as to the facts of such registration, on the theory that he would incriminate himself, where the statute provides that the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person testifying, and that a person so testifying shall not thereafter be liable to indictment, prosecution, or punishment for the offense with reference to which his testimony was given. People v. Cahill, 193 N. Y. 232, 20 L.R.A. (N.S.) 1084, 86 N. E. 39.

An immunity clause contained in an election law, which provides that "no witness giving evidence in any prosecution or other proceeding under this act shall ever be proceeded against for any offense against this act or against the other election laws, committed by him at or in connection with the same election," was held in Flanary v. Com. 113 Va. 775, 75 S. E. 289, to be coextensive with the constitutional privilege of silence.

And in Lockett v. State, 145 Ark. 415, 224 S. W. 952, it was held that a witness before the grand jury investigating alleged election frauds could not, on the ground that it would incriminate him, refuse to answer a question pertaining to assessment blanks fraudulently issued for the purpose of enabling parties to vote, since he was afforded ample protection under § 3087

The appellant Arndstein did not waive his constitutional right to refuse to answer any questions that might tend to incriminate him by reason of his filing of schedules in bankruptcy proceedings, in accordance with an order of the court. of Kirby's Digest, which provided that "in all cases where two or more persons are jointly or otherwise concerned in the commission of any crime or misdemeanor, either of such persons may be sworn as a witness in relation to such crime or misdemeanor; but the testimony given by such witness shall in no instance be used against him in any criminal prosecution for the same offense."

The provision of the New York Penal Code to the effect that no person who testifies upon any investigation or proceeding for a violation of the statute relating to gambling shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction concerning which he may testify or produce evidence, and that no evidence so given or produced shall be received against him upon any criminal investigation or proceeding, was held, in People ex rel. Lewisohn v. Court of General Sessions, 96 App. Div. 201, 89 N. Y. Supp. 364, affirmed without opinion in 179 N. Y. 594, 72 N. E. 1148, to satisfy the constitutional guaranty against self-incrimination.

And such a statute would be constitutionally broad enough if it forbade any future prosecution. Re Kittle, 180 Fed. 946.

But no immunity statute can deprive a witness of his constitutional privilege unless it is as broad as the privilege surrendered. United States v. Bell, 81 Fed. 830; United States v. Goldstein, 132 Fed. 789; Re Hess, 134 Fed. 109; Re O'Shea, 166 Fed. 180; Ex parte Butt, 78 Ark. 262, 93 S. W. 992; People v. Argo, 237 Ill. 173, 86 N. E. 679; Re Beer, 17 N. D. 184, 115 N. W. 672, 17 Ann. Cas. 126. (As will be observed

Ensign v. Pennsylvania, 227 U. S. 592, 57 L. ed. 658, 33 Sup. Ct. Rep. 321; Re Podolin, 205 Fed. 563; Podolin v. Lesher Warner Dry Goods Co. 126 C. C. A. 611, 210 Fed. 97.

Solicitor General Frierson argued the cause and filed a brief for appellee:

A bankrupt may refuse to file schedules which will tend to incriminate him. Re Podolin, 202 Fed. 1014, 205 Fed. 563; Re Bendheim, 180 Fed. 918; Re Tobias, Greenthal & Mendelson, 215

Fed. 815.

whether his evidence will bring him into danger of the law,-it must appear that there is reasonable ground for apprehending such danger.

Brown v. Walker, 161 U. S. 591, 599, 40 L. ed. 819, 821, 5 Inters. Com. Rep. 369, 16 Sup. Ct. Rep. 644; Re Tobias, Greenthal & Mendelson, supra.

Mr. Justice McReynolds delivered the opinion of the court:

close adequate grounds therefor, the Holding that the petition failed to discourt below denied appellant's [72] 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,

supra.

The petition alleges:

That having been adjudged an invol

A witness is not the sole judge of untary bankrupt, Arndstein was called

from the earlier note, this view accords | with Counselman v. Hitchcock, 142 U. S. 547, 35 L. ed. 1110, 3 Inters. Com. Rep. 816, 12 Sup. Ct. Rep. 195, and other cases following that ruling.)

One may claim his constitutional privilege and refuse to answer questions as to a certain offense, although granted immunity, where the answers would tend to connect him with other offenses against which the immunity order afforded no protection.

pretation of the statute. When it is attempted to take away the constitutional rights of a citizen and give him in exchange a statutory immunity, that which is given ought to be as broad as the right which is taken away."

And see Ex parte Butt, 78 Ark. 262, 93 S. W. 992, where it was held that the witness could refuse to answer the questions propounded, since the answers could be used against him in other prosecutions against which § 3087, in Kirby's Digest (set out in Lockett v. State, supra), did not protect him.

And since the immunity given by the provision of the Bankrupt Act of July 1, 1898, § 7, does not satisfy the constitutional guaranty against self-incrimination, the privilege may be claimed. ARNDSTEIN V. MCCARTHY; United States v. Goldstein, 132 Fed. 789; Re Hess, 134 Fed. 109.

Thus, a witness in an investigation before the grand jury of a charge of bribery alleged to have been committed by him by the paying of money to protect him in the running of gambling houses cannot, by virtue of an immunity order issued under a statute relating to testimony pertaining to the offense of bribery only, be compelled to answer questions as to the giving of the bribe, where the answers would show him to be guilty of the offense of gambling and the keeping of gambling houses, against prosecution for which the immunity order afforded no protection; and this, although the answers would tend to show the offense of bribery. People v. Argo, 237 Ill. 173, 86 N. E. 679. The court said: "If a procedure of this kind can be upheld in respect to bribery and gambling, we see no reason why it might not be employed with equal propriety in regard 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

So, too, in Re O'Shea, 166 Fed. 180, it was held, following Counselman v. Hitchcock, cited in the earlier note, that since U. S. Rev. Stat. § 860, did not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, cial pension examiner, to be examined one subpoenaed to appear before a spe

as

to certain pension claims, might claim her privilege not to answer questions which might incriminate her.

before special commissioners for exam ination under § 21a, Bankruptcy Act. He refused to answer a long list of questions, claiming that to do so might tend to degrade and incriminate him. The district judge upheld this contention and denied a motion to punish for contempt. That, subsequent to such examination, and under the direction of the court, the bankrupt filed schedules under oath which purported to show his assets and liabilities. When interrogated concerning these he set up his constitutional privilege and refused to answer many questions which are set out. Thereupon he was committed to jail.

The writ was refused upon the theory that, by filing schedules without objection, the bankrupt waived his constitutional privilege, and could not thereafter refuse to reply when questioned in respect of them. This view of the law we think is erroneous. The schedules, standing alone, did not amount to an admission of guilt, or furnish clear proof of crime, and the mere filing of them did not constitute a waiver of the right to stop short whenever the bankrupt could fairly claim that to answer might tend to incriminate him. See Brown V. Walker, 161 U. S. 591, 597, 40 L. ed. 819, 821, 5 Inters. Com. Rep. 369, 16 Sup. Ct. Rep. 644; Foster v. People, 18 Mich. 266, 274; People ex rel. Taylor v. Forbes, 143 N. Y. 219, 230, 38 N. E. 303; Reg. v. Garbett, 2 Car. & K. 474, 495, 1 Den. C. C. 236, 2 Cox, C. C. 448. It is impossible to say from mere consideration of any way be disclosed or uncovered by or through his answers. Re Beer, 17 N. D. 184, 115 N. W. 672, 17 Ann. Cas. 126.

See, however, Davison v. Guthrie, 186 Iowa, 211, 172 N. W. 292, which held that the immunity statute is sufficient if it grants immunity from prosecution for the offense to which the testimony relates; and so the witness cannot claim a privilege because his testimony might make him liable to prosecution for some other offense. The court stated that the 5th Amendment to the Federal Constitution imposed no limitation upon the power of the state, and has no application to a criminal prosecution for the violation of a state statute; and, further, that while the Constitutions of most states contain a provision varying somewhat in language, but in terms and effect similar to the 5th Amendment to

142

the questions propounded, in the light of the circumstances disclosed, that they could have been answered with entire impunity. The writ should have issued.

"No person . . . shall be compelled in any criminal case to be a witness against himself,"-5th Amendment. "This provision must have a broad construction [73] in favor of the right which it was intended to secure." "The object was to secure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime." Counselman v. Hitchcock, 142 U. S. 547, 562, 35 L. ed. 1110, 1113, 3 Inters. Com. Rep. 816, 12 Sup. Ct. Rep. 195.

The protection of the Constitution was not removed by the provision in § 7 of the Bankruptcy Act [July 1, 1898, 30 Stat. at L. 548, chap. 541, Comp. Stat. § 9591, 1 Fed. Stat. Anno. 2d ed. p. 610], "No testimony given by him shall be offered in evidence against him in any criminal proceeding." "It could not and would not prevent the use of his testimony to search out other testimony to be used in evidence against him or his property." Counselman v. Hitchcock, supra, p. 564.

The judgment below must be reversed, and the cause remanded for further proceedings in conformity with this opinion.

Mr. Justice Day took no part in the consideration or decision of this cause. the Federal Constitution, no such provision is found in the Constitution of Iowa.

The immunity which must, under the United. States Constitution, 5th Amendment, be accorded to a witness compelled to give evidence against himself, relates only to past offenses, and does not exempt the witness from prosecution for perjury committed when so testifying.

And so, the immunity clause in the Bankrupt Act of July 1, 1898, § 7, subd. 9, that no testimony given by the bankrupt under the command of that section shall be offered in evidence against him in any criminal proceeding, does not bar a criminal prosecution for perjury for false swearing when giving such testimony. Glickstein v. United States, 222 U. S. 139, 56 L. ed. 128, 32 Sup. Ct. Rep. 71.

254 U. S.

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