Opinion
No. 23056
Decided December 9, 1931.
Public Utilities Commission — Contempt for refusing to answer claimed self-incriminating question — Immunity afforded witness by statute — Sections 553, 614-6 and 614-84, General Code — Unlawfully operating motor transportation company.
Pursuant to the authority conferred by Sections 614-84 and 614-6, General Code, the Public Utilities Commission cited the plaintiffs in error to appear before it for the purpose of eliciting the fact whether the witness was engaged in operating a motor transportation company in violation of law. The witness refused to answer any of the questions propounded in respect thereto, claiming his constitutional protection under the provisions of the State and Federal constitutions.
Held: Section 553, General Code, confers upon such witness full and complete immunity by preventing prosecution or subjection to penalties against him "on account of any transaction, matter or thing concerning which he may have testified." Since that section affords the witness such absolute immunity, it deprives him of his constitutional right to refuse to answer; and for so refusing he may be punished for contempt.
ERROR to the Court of Appeals of Franklin county.
Acting under authority of Section 614-84, General Code, and by initiating a proceeding under the provisions of Section 614-6, General Code, on or about July 1, 1930, the Public Utilities Commission cited the plaintiffs in error to appear before it as witnesses for the purpose of eliciting the fact whether either or each of them were engaged as a motor transportation company without having secured a certificate of public convenience and necessity therefor from the commission. Upon being questioned in respect thereto, and especially in relation to their several methods of operation, each of the plaintiffs in error refused to answer any of the questions propounded, each claiming his constitutional protection under the Fifth Amendment to the Federal Constitution and under the provisions of Article I, Section 10 of the State Constitution; one of the plaintiffs in error, Harry E. Mouser, assigning the specific reason that his answer would tend to incriminate him.
Because of their refusal to testify, application was made by the commission to compel obedience by way of contempt, under the provisions of Section 614-6, General Code, said application being made to the common pleas court of Franklin county. That court found that each of the plaintiffs in error was guilty of contempt for refusing to answer, and ordered each committed to the local county jail until he answered the questions set forth in the several applications filed with the court.
Error was prosecuted by the plaintiffs in error to the Court of Appeals which sustained and affirmed the orders and judgment of the court of common pleas. A petition in error seeking a review of the judgment of the Court of Appeals was filed in this court as of right because of the constitutional question involved.
Miss Helen D. Bergin, Mr. H.N. Routzohn and Mr. J.A. Finney, for plaintiffs in error. Mr. Gilbert Bettman, attorney general, and Mr. T.J. Herbert, for defendant in error.
The original proceeding instituted before the commission was for the purpose of ascertaining whether or not plaintiffs in error severally had violated the Motor Transportation Act in failing to first secure a certificate of public convenience and necessity from the commission; and it was the purpose of the commission to elicit from the plaintiffs in error, as witnesses, information touching that feature. Under the provisions of Section 614-100, General Code, a failure to comply with the provisions of the Motor Transportation Act on the part of the witness made him guilty of a misdemeanor, punishable by a fine of not less than $25 nor more than $1,000.
The plaintiffs in error on the grounds of self-incrimination refused to answer questions propounded by a member of the commission, and for their protection they relied upon two constitutional guaranties, one being the Fifth Amendment of the Federal Constitution, providing that "No person * * * shall be compelled in any Criminal Case to be a witness against himself," the other being Article I, Section 10, of the Ohio Constitution, providing that "No person shall be compelled, in any criminal case, to be a witness against himself." However, Section 553, General Code, which is a part of the chapter relating to the Public Utilities Commission, provides in express terms that no person shall be excused from testifying "on the ground that the testimony or evidence * * * may tend to incriminate him or subject him to a penalty or forfeiture; but no person having so testified shall be prosecuted or subjected to a penalty or forfeiture for, or on account of, any transaction, matter or thing concerning which he may have testified," etc. Section 614-39, General Code, contained in the same chapter, is of similar import.
Were it not for the immunity from prosecution granted by these sections of the Code, the plaintiffs in error could have successfully relied upon the privilege against self-incrimination guaranteed by the two constitutional sections above referred to. The Federal Congress, and many of the states as well, have passed legislation granting immunity to witnesses who are called upon to testify; and it has been generally held that where full statutory immunity has been conferred upon the witness, and where such immunity is full and complete by preventing prosecutions against the witness "on account of any transaction, matter or thing" testified to, such witness may be compelled to testify and be guilty of contempt in refusing to do so.
In Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct., 195, 35 L.Ed., 1110, it was held that the statute there construed did not adequately furnish complete protection to the witness; and that an immunity statutory enactment to be valid must afford absolute immunity against future prosecution and must supply a complete protection from all the perils to which his answer may subject him. Likewise in Arndstein v. McCarthy, 254 U.S. 71, 41 S. Ct., 26, 27, 65 L.Ed., 138, it was held that the constitutional protection against self-incrimination was not removed by the limited provisions of the Bankruptcy Act which simply provided that "No testimony given by him [bankrupt] shall be offered in evidence against him in any criminal proceeding." (Title 11, Section 25, U.S. Code). It was held in effect that this statute was too narrow and not sufficiently broad to give the witness absolute and complete immunity under the Fifth Federal Amendment.
Such is not the case under the broad and comprehensive immunity furnished by the Ohio statute, which provides that if a person does testify he shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may have testified. While the provisions of the Federal Constitution, notably the Fifth Amendment referred to, may not apply to criminal prosecutions or to immunities granted under state law, since Ohio has adopted almost in hæc verba a statute similar to those passed by the Federal Congress, it is pertinent to refer to the federal decisions upholding the rule that an immunity statute, such as we have in this state, relieving the witness from prosecutions and exculpating him from penalties arising out of the transaction or matter concerning which the witness may have testified, sufficiently satisfies the constitutional guaranty of protection against self-incrimination.
In Hale v. Henkel, 201 U.S. 43, 26 S. Ct., 370, 376, 50 L.Ed., 652, Mr. Justice Brown delivering the opinion said that it was in consequence of the decision of the Counselman case, supra, that immunity acts of this character were passed by Congress; that the Act of February 25, 1903, considered in that case, as well as the Interstate Commerce Act involved in the previous case of Brown v. Walker, 161 U.S. 591, 16 S.Ct., 644, 40 L.Ed., 819, afforded "absolute immunity against prosecution for the offense to which the question related, and deprived the witness of his constitutional right to refuse to answer." The federal immunity acts in each of the foregoing cases contain provisions very similar to the Ohio immunity statute. The statute in the Brown case provided 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," etc. (Title 15, Section 32, U.S. Code). The high Federal court held that the statute afforded absolute immunity against prosecution for the offense to which the question related and deprived the witness of his constitutional right to refuse to answer.
Since the immunity granted by the state is absolute, and sufficiently comprehensive to prevent prosecution of the witness and to prevent his subjection to penalties on account of the transactions and matters or things inquired of the witness, we are of the opinion that the several plaintiffs in error were not entitled to the benefit of their claimed constitutional guaranties, and that therefore each became guilty of contempt in refusing to answer the questions propounded to him; that the trial court did not err in adjudging the several plaintiffs in error guilty of contempt for such refusal.
For the reasons stated it is the opinion of this court that the judgment of the Court of Appeals affirming the orders and judgment of the trial court should be affirmed.
Judgment affirmed.
MARSHALL, C.J., MATTHIAS, DAY, ALLEN and ROBINSON, JJ., concur.
KINKADE, J., dissents.