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the provisions of the Wilson Act. So held sustaining laws of Missouri, authorizing an inspector for the State, collecting inspection charges, fees, and licenses imposed upon beer or other malt liquors shipped into the State of Missouri held for sale or consumption within the State, or for shipment to other States. (April, 1905. Pabst Brewing Co. v. Crenshaw, 198 U. S. 17.)
§ 5. Interstate Commerce - State Law Cannot Compel Furnishing Cars for.- A State has no authority under its police power, to require a common carrier, engaged in interstate commerce, to furnish a specified number of cars at a specified time to be used by the shipper in interstate commerce, and a statute passed by the State Legislature conferring such power is a burden upon interstate commerce, and void as to cars to be used in interstate shipments. (Houston & Texas Central Ry. Co. v. Mayes, 201 U. S. 321.)
A Texas statute (Rev. Stat., 88 4497–5000), authorized a shipper to make a requisition in writing for a number of cars to be furnished at any point indicated, within a certain number of days, upon the shipper making a deposit of onefourth of the freight, with the agent of the company.
A penalty was imposed upon the carrier for failure to comply with the requisition, subjecting it to forfeit $25 per day for each car which it failed to furnish. The statute further declared that its provisions should not apply “in cases of strikes or other public calamities.” In a suit to recover the penalty the carrier interposed the defense that the cars referred to in the complaint were intended to be used for shipments from the State of Texas to the State of Oklahoma, and contended that the statute did not apply because the State of Texas had no authority to regulate interstate commerce, and that such authority could not be sustained upon the theory that it was an exercise of the police power of the State. Plaintiff had judgment in the State court, which was affirmed, and a writ of error to the Supreme Court of the State of Texas was denied. Upon a writ of error to the Supreme Court of the United States, the judgment was reversed upon the ground that in so far as the Texas statute
sought to regulate the furnishing of cars used in interstate commerce, it was unconstitutional and void. (Houston & Texas Central Ry. Co. v. Mayes, 201 U. S. 321.)
§ 6. Interstate Commerce-Taxation Business Within the State.- A statute of Georgia (act passed December 21, 1900), provided that there should be assessed and collected “ upon all agents of packing-houses doing business in the State, $200 in each county where said business is carried on.” The validity of the act was attacked upon the ground that it was a tax on interstate commerce. The court sustained the statute upon the ground that, so far as it applied to meats sold in Chicago and shipped to the petitioner in Georgia for distribution, it could not be sustained; but that so far as the petitioner was engaged in the business of selling directly to customers in Atlanta, he was engaged in carrying on an independent business as a wholesale dealer and was liable to the tax. Judgment of the Supreme Court of Georgia affirmed. (Kehrer v. Stewart, 197 U. S. 60.)
The Supreme Court of Georgia having held that the tax on agents of packing-houses as to meats shipped from one State into another for distribution was void as being a tax on interstate commerce, but that in so far as the statute applied only to domestic business the statute was applicable, such a construction would be accepted by the Supreme Court of the United States in support of the tax, in so far as it relates to domestic business only. (Kehrer v. Stewart, 197 U. S. 60.)
II. CONSTITUTIONAL LIMITATIONS - IMMUNITY. § 7. Immunity Defined — Immunity Statute.— The immunity guaranteed by the Fifth Amendment, which declares that “no person shall be compelled in any criminal case to be a witness against himself” is a personal privilege extended to the individual when called upon to testify. The witness can claim the privilege for himself only when he has been subpænaed, thus making his attendance and evidence compulsory. He cannot invoke the privilege to protect or shield parties other than the witness. If he is an officer or agent of a corporation, he will not be allowed to claim that his testimony might incriminate the body corporate, because immunity under the Constitution extends only to a natural person, and not to a corporation. As between the witness and the corporation also, the latter is a third person, within the meaning of the immunity provision. The witness cannot invoke his personal privilege to protect any person other than himself, not even a corporation of which the witness is the agent. The immunity clause has been thus construed by the Supreme Court of the United States, in what is known as the Tobacco Trust cases. (Hale v. Henkel, 201 U. S. 43; McAlister v. Henkel, 201 U. S. 61.)
The notion that immunity flows from the Constitution like a perpetual fountain, whose benign influence, like a benediction, is “broad and general as the casing air," conferring pardon upon all who may be indicted for crime, relieving them from liability, and rendering the indictment null and void, cannot obtain, in view of the ruling of the Supreme Court, defining the true intent and meaning of this wise and merciful provision of the Constitution.
Congress deemed it expedient to embody this rule of evidence, respecting immunity, in a statute. An act defining the limitations of the constitutional provision relating to the subject was approved June 28, 1906.* The statute provides as follows:
Immunity Defined.- That under the immunity provisions in the act entitled “ An act in relation to testimony before the Interstate Commerce Commission,” and so forth, approved February 11, 1893, in section 6 of the act entitled “ An act to establish the Department of Commerce and Labor," approved February 14, 1903, and in the act entitled "An act to further regulate commerce with foreign nations and among the States," approved February 19, 1903, and in
* The act is entitled as follows: “A bill to declare the true intent and meaning of parts of the acts entitled 'An act in relation to testimony before the Interstate Commerce Commission, and so forth, approved February 11, 1893, and an act entitled 'An act to establish the Department of Commerce and Labor,' approved February 14, 1903, and an act entitled 'An act to further regulate commerce with foreign nations and among the States,' approved February 19, 1903, and an act entitled 'An act making appropriations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June 30, 1904, and for other purposes,' approved February 25, 1903.
the act entitled "An act making appropriations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June 30, 1904, and for other purposes," approved February 25, 1903, immunity shall extend only to a natural person who, in obedience to a subpæna, gives testimony under oath or produces evidence, documentary or otherwise, under oath. Act approved June 28, 1906.
§ 8. Immunity Under Federal Statute — Act of February 25, 1903, Construed.-Congress passed an act, approved February 25, 1903, entitled "An act making appropriations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June 30, 1904, and for other purposes." (Laws 1903, chap. 755, 32 Stat. 854, 904.) This act contained a provision “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, documentary or otherwise, in any proceeding, suit, or prosecution under said acts,” of which the Sherman Anti-Trust Law is one, providing, however, that “no person so testifying shall be exempt from prosecution or punishment for perjury committed in so testifying.” Similar provisions are contained in section 3 of the Elkins Act, approved February 19, 1903; and in section 6 of the Commerce and Labor Act, approved February 14, 1903. The immunity granted, however extends only to prosecutions and proceedings arising under Federal statutes, and can have no application to immunity under a State statute. It was held that under this act a witness was not excused from testifying before a Federal grand jury because the immunity under the Federal statute did not extend to prosecutions in the State court. (Hale v. Henkel, 201 U. S. 43.)
The converse of this proposition was held by the Supreme Court of the United States, in construing a State Anti-Trust Law of Kansas, in which the court held that a witness could not refuse to testify before State authorities acting under a State Anti-Trust Law, because the immunity granted by the State statute did not extend to prosecutions under a Federal statute. (Jack v. Kansas, 199 U. S. 372.)
$ 9. Immunity Under State Statute - Constitutionality Sustained. - Authority to determine what crimes are punishable, and to provide for their punishment, is part of the police power of a sovereign State. This power was not conferred by the Constitution of the United States upon the Federal government, and remains in the State. The Fourteenth Amendment to the United States Constitution does not create, narrow, or widen the police power, but leaves it as it was before the amendment was adopted. No immunity in a State statute can be broad enough to include immunity from Federal prosecution, but the absence of such immunity does not necessarily invalidate the State law. (Jack v. Kansas, 199 U. S. 372.)
The decision in Jack case arose in a proceeding commenced under the Kansas Anti-Trust Law (Laws 1897, chap. 265). The plaintiff in error was subpænaed to appear before the district judge of Shawnee county, Kansas, to be examined under the State Anti-Trust Law with regard to the existence of a monopoly or combinations of persons engaged in the operation of coal mines in Osage county, to fix the price of coal to be sold to residents and citizens of Kansas. Questions were put to the witness, who refused to answer upon the ground that the answers tended to incriminate the witness, and that as the immunity provisions of the Kansas statute were not broad enough to secure immunity from prosecution under the Federal Anti-Trust Laws, the witness was not bound to answer. The objections were overruled and the witness directed to answer, which he refused to do. The court then made an order committing the witness to the jail of Shawnee county for contempt until he should answer the questions; imprisonment not to exceed thirty days. The order was affirmed by the Supreme Court of Kansas, and upon a writ of error taken to the Supreme Court of the United States, the order was affirmed. The plaintiff in error contended that as the immunity granted by the State statute did not furnish immunity from prosecution under the Federal Anti-Trust Laws, the order directing him to answer, and ordering his imprisonment for failure to do so, deprived him of his liberty without due process of law within the meaning