CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES

AT

OCTOBER TERM, 1947.

SHAPIRO v. UNITED STATES.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 49. Argued October 23, 1947. Decided June 21, 1948.

1. In obedience to an administrative subpoena, petitioner produced sales records which he had kept as required by a regulation of the Price Administrator, but claimed constitutional privilege. In a prosecution for violation of the Emergency Price Control Act based on evidence thus produced, he interposed a plea in bar, claiming that under § 202 (g) of the Act, which incorporates by reference the provisions of the Compulsory Testimony Act of 1893, his production of these records gave him immunity from prosecution. Held: The plea in bar was properly overruled by the trial court. Pp. 3-36.

2. The language of the Act and its legislative history, viewed against the background of settled judicial construction of the immunity provision, indicate that Congress required records to be kept as a means of enforcing the statute and did not intend to frustrate the use of these records for enforcement action by granting an immunity to individuals compelled to disclose them to the Administrator. Pp. 7-32.

(a) The very language of § 202 (a) discloses that the recordkeeping and inspection requirements were designed not merely to "obtain information" for assistance in prescribing regulations or orders under the statute, but also to aid in their enforcement. P. 8.

(b) The legislative history of § 202 indicates that Congress, whose attention was invited by proponents of the Price Control Act to the vital importance of the licensing, record-keeping and inspection provisions in aiding effective enforcement, did not

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intend § 202 (g) to proffer a "gratuity to crime" by granting immunity to custodians of non-privileged records. Pp. 8-16.

(c) In view of the previous construction given to the Compulsory Testimony Act of 1893 by this Court in Heike v. United States, 227 U. S. 131, Congress must have intended the immunity proviso in the Price Control Act to be coterminous with what would otherwise have been the constitutional privilege of petitioner in the case at bar; and since he could assert no valid privilege as to the required records here involved, under the doctrine of Wilson v. United States, 221 U. S. 361, he was entitled to no immunity under the statute. Pp. 16-20.

(d) The precise wording of § 202 (g) of the Price Control Act indicates that its draftsmen went to some pains to insure that the immunity provided for would be construed by the courts as being so limited. Pp. 20–22.

(e) Since the Price Control Act provided for price regulations enforceable against unincorporated entrepreneurs as well as corporate industry, it cannot be assumed that Congress intended to differentiate sub silentio, for purposes of the immunity proviso, between records required to be kept by individuals and those required to be kept by corporations. Pp. 22-24.

(f) Such a construction of the immunity proviso does not render meaningless the phrase "any requirements" in the opening clause of § 202 (g). Pp. 24-29.

(g) The legislative history of the 1893 immunity provision, which was incorporated into the Emergency Price Control Act, clearly discloses that the provision was enacted merely to provide an immunity sufficiently broad to be an adequate substitute for the constitutional privilege, in response to the ruling by this Court in Counselman v. Hitchcock, 142 U. S. 547. Pp. 28-29.

(h) The canon of avoidance of constitutional doubts does not govern the interpretation of the immunity provision, since its application to that clause would override the settled judicial construction of similar provisions and the legislative history of the Compulsory Testimony Act of 1893, and would frustrate the congressional intent manifested by the legislative history of the Emergency Price Control Act. Pp. 29–35.

3. This construction of § 202 (g) of the Price Control Act raises no serious doubts as to its constitutionality. Pp. 32-34.

(a) The privilege which exists as to private papers cannot be maintained where the records in question were required to be maintained under appropriate regulation, their relevance to the lawful purpose of the OPA is unquestioned, and they record trans

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Opinion of the Court.

actions in which the dealer could engage solely by virtue of a license granted under the statute. Pp. 32-35.

(b) The sales record which petitioner was required to keep as a licensee under the Price Control Act was such a record; it was legally obtained by the Administrator pursuant to the Act; and hence it was available as evidence. Pp. 34-35.

159 F.2d 890, affirmed.

Petitioner was convicted of having made tie-in sales in violation of regulations under the Emergency Price Control Act, notwithstanding a plea in bar claiming immunity from prosecution under § 202 (g). The Circuit Court of Appeals affirmed. 159 F. 2d 890. This Court granted certiorari. 331 U. S. 801. Affirmed, p. 36.

Bernard Tomson argued the cause for petitioner. With him on the brief were Menahem Stim and Michael C. Bernstein.

Solicitor General Perlman argued the cause for the United States. With him on the brief were Assistant Attorney General Quinn, Philip Elman, Robert S. Erdahl and Irving S. Shapiro.

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

Petitioner was tried on charges of having made tie-in sales in violation of regulations under the Emergency Price Control Act. A plea in bar, claiming immunity from prosecution based on § 202 (g) of the Act, was

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156 Stat. 23, as amended, 50 U. S. C. App. § 901.

2 "No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 (U. S. C., 1934 edition, title 49, sec. 46), shall apply with respect to any individual who specifically claims such privilege." 50 U. S. C. App. § 922 (g).

The Compulsory Testimony Act of 1893 provides: "No person shall be excused from attending and testifying or from producing

Opinion of the Court.

335 U.S.

overruled by the trial judge; judgment of conviction followed and was affirmed on appeal. 159 F. 2d 890. A contrary conclusion was reached by the district judge in United States v. Hoffman, post, p. 77. Because this conflict involves an important question of statutory construction, these cases were brought here and heard together. Additional minor considerations involved in the Hoffman case are dealt with in a separate opinion.

The petitioner, a wholesaler of fruit and produce, on September 29, 1944, was served with a subpoena duces tecum and ad testificandum, issued by the Price Administrator under authority of the Emergency Price Control Act. The subpoena directed petitioner to appear before designated enforcement attorneys of the Office of Price Administration and to produce "all duplicate sales invoices, sales books, ledgers, inventory records, contracts and records relating to the sale of all commodities from September 1, 1944 to September 28, 1944." In compliance with the subpoena, petitioner appeared and, after being sworn, was requested to turn over the subpoenaed records. Petitioner's counsel inquired whether petitioner was being granted immunity "as to any and all matters for information obtained as a result of the investigation and examination of these records." The presiding official stated that the "witness is entitled to whatever immunity which flows as a matter of law from the production of these books and records which are required to be kept

books, papers, tariffs, contracts, agreements and documents before the Interstate Commerce Commission, or in obedience to the subpoena of the Commission . . . on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subject 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, before said Commission, or in obedience to its subpoena ...

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Opinion of the Court.

pursuant to MPRS 271 and 426."

Petitioner thereupon produced the records, but claimed constitutional privilege.

The plea in bar alleged that the name of the purchaser in the transactions involved in the information appeared in the subpoenaed sales invoices and other similar documents. And it was alleged that the Office of Price Administration had used the name and other unspecified leads obtained from these documents to search out evidence of the violations, which had occurred in the preceding year.

The Circuit Court of Appeals ruled that the records which petitioner was compelled to produce were records required to be kept by a valid regulation under the Price Control Act; that thereby they became public documents, as to which no constitutional privilege against selfincrimination attaches; that accordingly the immunity of § 202 (g) did not extend to the production of these records and the plea in bar was properly overruled by the trial court. 159 F. 2d 890.

It should be observed at the outset that the decision in the instant case turns on the construction of a com

3 Section 14 of Maximum Price Regulation 426, 8 Fed. Reg. 9546, 9548-49 (1943) provides:

"Records. (a) Every person subject to this regulation shall, so long as the Emergency Price Control Act of 1942, as amended, remains in effect, preserve for examination by the Office of Price Administration all his records, including invoices, sales tickets, cash receipts, or other written evidences of sale or delivery which relate to the prices charged pursuant to the provisions of this regulation.

"(b) Every person subject to this regulation shall keep and make available for examination by the Office of Price Administration for so long as the Emergency Price Control Act of 1942, as amended, remains in effect, records of the same kind as he has customarily kept, relating to the prices which he charges for fresh fruits and vegetables after the effective date of this regulation and in addition as precisely as possible, the basis upon which he determined maximum prices for these commodities."

798176 O-49-6