221 U.S. 394
WILLIAM DREIER, Piff. in Err.,
WILLIAM DREIER, Appt.,
WILLIAM HENKEL, U. S. Marshal for the Southern District of New York.
Nos. 358 and 359.
Argued October 21, 1910
Ordered for reargument before full bench November 28, 1910.
Reargued March 2, 1911.
Decided May 15, 1911.
[221 U.S. 394, 395] Messrs. W. Wickham Smith and John K. Maxwell for plaintiff in error and appellant.
[221 U.S. 394, 396] Assistant to the Attorney General Kenyon, Attorney General Wickersham, and Mr. O. E. Harrison for defendant in error and appellee.
Mr. Justice Hughes delivered the opinion of the court:
The plaintiff in error and appellant, William Dreier, was subpoenaed to produce before the grand jury in the circuit court certain books and papers of the Lichtenstein Millinery Company, a New York corporation, of which he was the secretary. The grand jury was conducting an inquiry with respect to alleged violations of the customs laws by N. Hayes and others. The subpoena contained the ad testificandum clause, but the only question presented is with respect to the demand for the corporate documents. For his refusal to produce them for the inspection of the grand jury, Dreier was committed for contempt. The first case (No. 358) is a writ of error to the circuit court to review the judgment holding him to be in contempt, and directing his commitment; and the second (No. 359) is an appeal from an order dismissing a writ of habeas corpus. The contention of Dreier in both cases is [221 U.S. 394, 400] that the contents of the books and papers would tend to incriminate him, and that the proceedings to compel their production were in violation of the 5th Amendment of the Constitution of the United States.
It is urged that if he had a privilege, his conduct was such as to constitute a waiver. But it is not necessary to consider the case in this aspect. Dreier was not entitled to refuse the production of the corporate records. By virtue of the fact that they were the documents of the corporation in his custody, and not his private papers, he was under obligation to produce them when called for by proper process. Wilson v. United States (decided this day), 221 U.S. 361 , 55 L. ed. --, 31 Sup. Ct. Rep. 538. In that case the writ was directed to the corporateion, and here it was addressed to the custodian. As he had no privilege with respect to the corporate books and papers, it was his duty to obey.
Mr. Justice McKenna concurs in the result upon the ground of waiver.