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: Holding that the petition failed to disclose adequate grounds therefor, the court below denied appellant's [72] application for a writ of habeas corpus, through which he sought release from If he files the schedules, he waives the privilege he might have claimed, 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 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. 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. 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 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 brib-tional prohibition was designed to guard, ery. 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 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 examination 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. and the cause remanded for further proThe judgment below must be reversed, ceedings 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. priority as creditor subrogation of surety. At common law a surety is not subrogated to the rights of the sovereign (No. against the principal debtor until the claims of the former have been satisfied in full. Peoples v. Peoples Bros. 254 Fed. 489; Sheldon, Subrogation, 2d ed. § 127; (No. United States Fidelity & G. Co. v. Union Bank & T. Co. 143 C. C. A. 30, 228 Fed. 448; National Bank v. Rockefeller, 98 C. C. A. 8, 174 Fed. 22; Wilcox v. Fairhaven Bank, 7 Allen, 270; Swan v. Patterson, 7 Md. 164; Willingham v. Ohio Valley Bkg. & T. Co. 22 Ky. L. Rep. 158, 56 S. W. 706, 57 S. W. 467; Guarantee Title & T. Co. v. Title Guaranty & S. Co. 224 U. S. 152, 56 L. ed. 706, 32 Sup. Ct. Rep. 457; Taxation Comrs. v. Palmer [1907] A. C. 179, 76 L. J. P. C. N. S. 41, 96 L. T. N. S. 278, 23 Times L. R. 304, 14 Manson, 106; Dollar Sav. Bank v. United States, 19 Wall. 227, 22 L. ed. 80; United States v. State Bank, 6 Pet. 29, 8 L. ed. 308. The United States, having been given by U. S. Rev. Stat. § 3466, priority over other creditors of an insolvent debtor, is entitled to such priority, as against a surety on the debtor's bond to the government, for the amount of its claim remaining unpaid after the surety has paid the full amount of the liability on the bond, although by § 3468, when a surety pays to the United States the money due upon a bond, such surety is given like priority for the recovery of the money as is secured to the United States. While the priority given the surety by such statute attaches as soon as the obligation upon the bond is discharged, it cannot ripen into enjoyment unless or until the whole debt due the United States is satisfied. [For other cases, see United States, V.; Bank. ruptcy, X. c, 3, in Digest Sup. Ct. 1908.] [Nos. 271 and 272.] Submitted October 13, 1920. Decided No ΟΝ vember 8, 1920. N WRIT of Certiorari to the United States Circuit Court of Appeals for the Eighth Circuit to review a decree which affirmed a decree of the District Court for the Eastern District of Missouri, allowing equal priority with the United States to a claim of a surety on the bond of a government contractor. Reversed. See same case below, C. C. A. 262 Fed. 62. The facts are stated in the opinion. Assistant Attorney General Spellacy and Mr. Leonard B. Zeisler submitted the cause for the United States:. Note. On priority of United States in cases of insolvency-see notes to Field v. United States, 9 L. ed. U. S. 94, and Prince v. Bartlett, 3 L. ed. U. S. 614. As to common-law priority of state or United States in payment from assets of debtor-see notes to State v. First State Bank, L.R.A.1918A, 398; Re Carnegie Trust Co. 46 L.R.A. (N.S.) 260; and State v. Foster, 29 L.R.A. 226. United States Rev. Stat. § 3468, Comp. Stat. § 6374, 2 Fed. Stat. Anno. 2d ed. p. 223, does not change the common law, but is merely declaratory_of_it. Manisty v. Churchill, L. R. 39 Ch. Wi Matua [1908] A. C. 448; Robertson Messrs. Samuel W. Fordyce and The priority acquired by the surety is identical with that secured to the United States. Badger v. Daniel, 79 N. C. 387. The express words of the statute give priority to the surety when the bond is paid, and not when all debts due the United States are paid. United States v. Heaton, 63 C. C. A. 156, 128 Fed. 414; United States v. Ryder, 110 U. S. 729, 736, 28 L. ed. 308, 311, 4 Sup. Ct. Rep. 196; Hunter v. United States, 5 Pet. 173, 8 L. ed. 86; Guarantee Title & T. Co. v. Title Guaranty & S. Co. 224 U. S. 152, 56 L. ed. 706, 32 Sup. Ct. Rep. 457. The prerogative of sovereignty as to payment of debts is taken away by express language. Guarantee Title & T. Co. v. Title Guaranty & S. Co. supra. If the surety pays more than the bond, he is a mere volunteer, and is not entitled to subrogation as to the excess. Knowlton v. Moore, 178 U. S. 41, 77, 44 L. ed. 969, 984, 20 Sup. Ct. Rep. 747. Section 3468, Comp. Stat. § 6374, 2 Fed. Stat. Anno. 2d ed. p. 223, was an exception carved out of the right of priority of the sovereign. Deitch v. Staub, 53 C. C. A. 137, 115 Fed. 399; Voorhees v. Jackson, 10 Pet. 449, 471, 9 L. ed. 490, 499. Mr. Justice Brandeis delivered the opinion of the court: The National Surety Company executed as surety two bonds given to secure contracts entered into with the United States. The contractor defaulted and was later adjudicated a bankrupt. The loss to the government was about $13,000. The Surety Company paid to it on account of this loss $3,150, the full amount of the liability on the bonds. Thereupon the government proved its claim in bankruptcy for the balance, claiming, under Revised Statutes, § 3466,1 Comp. Stat. § 6372, 2 Fed. Stat. Anno. 2d ed. p. 216, priority therefor over all other [75] creditors. The surety Company proved for the $3,150, and claimed that under Revised Statutes, § 3468,2 Comp. Stat. § 6374, 2 Fed. Stat. Anno. 2d ed. p. 223, it was entitled to a share in the distribution of the estate pro rata on an equality with the government. The net assets of the estate were less than the amount of the government's claim. The referee sustained the contention of the Surety Company, and his order was affirmed both by the district judge and by the circuit court of appeals for the eighth circuit. - C. C. A., 262 Fed. 62. The case comes here on writ of cer tiorari (252 U. S. 577, 64 L. ed. 724, 40 Sup. Ct. Rep. 396). The single question presented is whether, in the distribution of the bankrupt's estate, the United States has priority over the Surety Company. Section 3468, applying an established rule of the law of subrogation (Lidderdale v. Robinson, 12 Wheat. 594, 596, 6 L. ed. 740, 741), declares that when a "surety pays to the United States the money due upon [a] bond, such surety.. shall have the like priority for the recovery.. of the moneys as is secured to the United States." Section 3466, embodying the common-law rule by which the sovereign has priority over other creditors of an insolvent (United States v. State Bank, 6 Pet. 29, 35, 8 L. ed. 308, 310), declares that "the debts due to the United States shall first be satisfied." There is no conflict between the two sections, which are substantially a reenactment and extension of the provisions of $ 65 of the Act of March 2, 1799, [76] chap. 22, 1 Stat. at L. 627, 676, Comp. Stat. §§ 6372, 6374, 2 Fed. Stat. Anno. 2d ed. pp. 216, 223. The priority secured to the United States by § 3466 is priority over all other creditors; that is, private persons and other public bodies. This priority the surety obtains upon discharging its obligation. But what the surety asks here is not to enjoy like priority over such other creditors, but equality with the United States, a creditor whose debt it partly secured. To accord such equality would abridge the priority expressly conferred upon the government. While the priority given the surety by the statute attaches as soon as the obligation upon the bond is discharged, it cannot ripen into enjoyment unless or until the whole debt due the United States is satisfied. This result is in harmony with a familiar rule of the law of subrogation under which a surety liable only for part of the debt does not become subrogated to collateral or to rem1 Sec. 3466. Whenever any person indebt- | solvent, or whenever, such principal being ed to the United States is insolvent, or deceased, his estate and effects which come whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority hereby established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed. 2 Sec. 3468. Whenever the principal in any bond given to the United States is in to the hands of his executor, administrator, or assignee, are insufficient for the payment of his debts, and, in either of such cases, any surety on the bond, or the executor, administrator, or assignee of such surety pays to the United States the money due upon such bond, such surety, his executor, administrator, or assignee, shall have the like priority for the recovery and receipt of the moneys out of the estate and effects of such insolvent or deceased principal as is secured to the United States; and may bring and maintain a suit upon the bond, in law or equity, in his own name, for the recovery of all moneys paid thereon. |