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ESSGEE COMPANY CHINA ET AL. v. UNITED STATES. HANCLAIRE TRADING CORPORATION ET AL. V. UNITED STATES.

decided: May 7, 1923.

ESSGEE COMPANY OF CHINA ET AL
v.
UNITED STATES.

HANCLAIRE TRADING CORPORATION ET AL
v.
UNITED STATES.



ERROR TO AND APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

Author: Taft

[ 262 U.S. Page 152]

 MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

These are appeals and writs of error to review the action of the District Court in denying petitions of the two companies, the Essgee Company of China and the Hanclaire Trading Corporation, praying that the books and papers produced by an officer of the two companies, in response of a duces tecum issued to them by order of the Federal Grand July, be returned to the petitioners, on the ground that the process issued and the detention of the books by the Government were and are in violation of their rights under the Fourth and Fifth Amendments to the Federal Constitution.

Both appeals and writs of error were allowed in these cases. This was unnecessary. The review sought is of an order of the District Court in a special proceeding in

[ 262 U.S. Page 153]

     which no jury can intervene. It likens itself in its appellate character to a review of cases in equity or in admiralty or of an order upon a writ of Habeas corpus in which issues of facts are triable to the court, and in which the review may properly involve a reexamination by the reviewing court of the whole record and of the findings of the court upon both the law and the evidence therein. Since the passage of the Act of September 6, 1916, entitled "An Act To amend the Judicial Code" (39 Stat. 726, c. 448, ยง 4), which provides that no court having power to review a judgment or decree passed by another shall dismiss a writ of error solely because an appeal should have been taken, or dismiss an appeal because a writ should have been sued out, but that when such mistake or error occurs, it shall disregard the same and take the action which would be appropriate if the proper appellate procedure had been followed, the distinction is not important from the standpoint of the jurisdiction of this Court. In the interest, however, of orderly procedure, economy in time of both courts, and in the making up and printing of the record, counsel should make every effort to select the proper procedure in review and not duplicate methods out of an abundant caution which the Act of 1916 makes unnecessary.

The Hanclaire Trading Corporation and the Essgee Company of China were organized under the laws of New York and were doing an importing business in New York City. Schratter was an officer in both companies and Kramer was an officer of one and attorney for both. The Federal Grand Jury in the Southern District of New York was investigating charges of frauds in importations by these two companies whose interests and transactions were intermingled. On October 14, 1921, a subpoena duces tecum was served upon each of the corporations by personal service upon Schratter as a chief officer thereof.Schratter then directed Kramer to gather together the

[ 262 U.S. Page 154]

     books and papers called for and produce them at the Federal Court House. The subpoena was served by the U.S. Marshal for the District. He was accompanied by three other Government officials, who, it was charged, without authority examined and took away to the Court House other books and papers not included in the list set forth in the duces tecum. This incident was made an issue in the affidavits; but it is evident from reading the record and the admission of counsel that we are not concerned with any such records and papers, but only with those which were produced by Kramer for the two companies in response to the duces tecum. Schratter in his affidavit and petition claims that under the subpoena some papers belonging to him individually were taken, but an examination of the list of records and papers produced, shows that the only personal paper produced by Kramer was the personal tax return of Schratter, which he does not assert was in any way relevant to the charges, or in any degree incriminating as to him. Kramer and Schratter brought the records and papers called for by the subpoena to a room in the Court House and deposited them on a table where the District Attorney found them and took charge of them. Neither Schratter nor Kramer was then called before the Grand Jury, but they were both at once arrested upon warrants for violation of the importing laws. They testified that they did not see the District Attorney when he took the records and papers and that Kramer demanded a return of them and protested against their detention. Evidence to the contrary is offered by the Government witnesses, but we do not regard the issue as material.

The next day, October 15, 1921, Schratter appeared before Judge Knox and applied for permission to go abroad in order to attend to business of vital personal importance. Schratter remained abroad until June, 1922, and on the 9th of that month appeared to plead to an indictment

[ 262 U.S. Page 155]

     which had in the meantime been found against the two corporations and himself.Meantime, Kramer, after much solicitation on his part, was given an opportunity to testify to the Grand Jury and to present to them other records and papers which he voluntarily produced. He was not indicted. After Schratter's return and Kramer's escape from indictment, the two corporations and Schratter filed the petition, denial of which by the District Court is now before us for review.

The books and papers brought before the Grand Jury and the court in this case were the books, records and papers of corporations of the State of New York. Such corporations to not enjoy the same immunity that individuals have, under the Fourth and Fifth Amendments, from being compelled by due and lawful process to produce them for examination by the state or Federal Government.Referring to the books and papers of a ...


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