The facts are stated in the opinion Messrs. Robert M. Toms, Eugene A. Walling, William W. Potter, Attorney General, and Harry N. Deyo, Assistant Attorney General, for the State.

Messrs. Monaghan, Crowley, Reilley, & Kellogg, and Miller, Baldwin, & Boos for appellees.

Fellows, J., delivered the opinion of the court:

The bill in this case is filed under Act 389, Public Acts 1925, to abate a nuisance, alleging that the premises in question were being used for the purposes of lewdness, assignation, and prostitution. Defendant Cass-Henry Building Company made a motion to dismiss on the ground that the act is unconstitutional for various reasons, among them the following: "That the allegations of the bill accuse this defendant of the commission of a crime and a misdemeanor, and the bill seeks to subject and expose this defendant to a penalty and a forfeiture, and that defendant cannot be compelled to make answer to any allegations which will accuse itself or admit the commission of any penal

of the court.

ty or forfeiture; and that any provision of Act No. 389, Public Acts 1925, compelling this defendant to make answer or suffer default is unconstitutional and void."

For this reason the trial judge held the act invalid and dismissed the bill. the bill. The state appeals. We therefore have before us these questions: May a defendant be required to answer allegations of a bill when the answer tends to criminate him? And, if not, is the act invalid for this reason, and should the bill be dismissed on this ground? The importance of these questions both to the public and to the individual requires their consideration at length.

Constitutional

state court.

We are here dealing with the provisions of the state Constitution, the provisions of the Federal Constitu- law-witnesses tion not being ap- protection in plicable to proceedings in state courts. New Jersey, 211 U. S. 97, 29 Sup. Ct. Rep. 14. Section 16, art. 2 of the Constitution of this state, provides: "No person shall

Twining v. 78, 53 L. ed.

be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law."

In the recent case of Joslin v. Noret, 224 Mich. 240, 194 N. W. 983, we pointed out that this state was aligned with those states which had given the constitutional provision here under consideration a liberal construction, and we there held, following earlier cases, that its provisions protected a witness in the trial of a civil case from being required to give testimony which would tend to establish the violation by him of a penal statute of the state. The answer of a defendant may be read in evidence on the hearing as an admission, and an exhaustive examination of the cases and text-books satisfies us that the con

Witnesses-pro

cery case.

stitutional provision

tection in chan- is applicable to an answer in a chancery case. We shall first consider what is said by the text-writers. 28 R. C. L. 434, thus states the rule: "The rights intended to be protected by the constitutional provision that no man accused of crime shall be compelled to be a witness against himself are so sacred, and the pressure toward their relaxation so great, when the suspicion of guilt is strong and the evidence obscure, that it is the duty of courts liberally to construe the prohibition in favor of personal rights, and to refuse to permit any steps tending toward their invasion. Hence, there is the well-established doctrine that the constitutional inhibition is directed not merely to the giving of oral testimony, but embraces as well the furnishing of evidence by other means than by word of mouth; the divulging, in short, of any fact which the accused has a right to hold secret."

In Cyc. at page 1356, will be found the following: "As defendant in a penal action cannot be required to furnish evidence against himself, he cannot be required to file an answer specifically denying all the allegations of the petition."

Pomeroy thus lays down the rule (1 Pom. Eq. Jur. 4th ed. § 202): "As a general proposition, the discovery, in order to be granted, must be in aid of some object which a court of equity can regard with approval, or at least without disapproval,-some object which is not opposed to good morals or to the principles of public policy embodied in the law. This doctrine is the foundation of several particular rules regulating the practice of discovery. The first of these particular applications of the doctrine is that a defendant in the discovery suit, or in a suit for relief as well as discovery, is never compelled to disclose facts which would tend to criminate himself, or to expose him to criminal punishment or prosecution, or to pains, penalties, fines, or forfeitures. He may refuse an answer, not only to the main, directly incriminating facts, but to every incidental fact which might form a link in the chain of evidence establishing his liability to punishment, penalty, or forfeiture."

We quote § 1942, Story's Equity Jurisprudence, 14th ed: "In the next place, courts of equity will not entertain a bill for a discovery to aid the promotion or defence of any suit which is not purely of a civil nature. Thus, for example, they will not compel a discovery in aid of a criminal prosecution, or of a penal action, or of a suit in its nature partaking of such a character, or in a case involving moral turpitude; for it is against the genius of the common law to compel a party to accuse himself, and it is against the general principles of equity to aid in the enforcement of penalties or forfeitures."

It will be noted that both Pomeroy and Story refer specifically to discovery, and an examination of the cases will disclose that in a large number of them the question arose on bills for discovery, or bills which incidentally sought discovery. This, we think, should be borne in mind lest we confuse the result reached with the reason for reaching such result. The cases are quite uniform

-constitutional

protection- duct has been such equitable relief. as to justify a criminal prosecution does not preclude the other party from seeking against him appropriate equitable relief. This is settled by our former holdings to which we will later refer.

The cases both in England and in this country are quite uniform in holding that a defendant may not be required in his answer to state facts which would tend to criminate himself. Among the English cases, see Fisher v. Owen, L. R. 8 Ch. Div. 646; Glynn v. Houston, 1 Keen, 329, 48 Eng. Reprint, 333; Lichfield v. Bond, 6 Beav. 88, 49 Eng. Reprint, 758; Claridge v. Hoare, 14 Ves. Jr. 59, 33 Eng. Reprint, 443; Harrison V. Southcote, 2 Ves. Sr. 389, 28 Eng. Reprint, 249; Atty. Gen. v. Lucas, 2 Hare, 566, 67 Eng. Reprint, 234; Honeywood v. Selwin, 3 Atk. 276, 26 Eng. Reprint, 961; Smith v. Read, 1 Atk. 526, 26 Eng. Reprint, 332; Chauncey v. Tahourden, 2 Atk. 392, 26 Eng. Reprint, 637. Among the American cases, see United States v. Saline Bank of Virginia, 1 Pet. 100, 7 L. ed. 69; United States v. National Lead Co. (C. C.) 75 Fed. 94; Thompson v. Whitaker Iron Co. 41 W. Va. 574, 23 S. E. 795; Higdon v. Heard, 14 Ga. 255; Daisley v. Dun

(C. C.) 98 Fed. 498; Stewart v. Drasha, 4 McLean, 563, Fed. Cas. No. 13,424; Poindexter v. Davis, 6 Gratt. 481; Northrop v. Hatch, 6 Conn. 361; Robson v. Doyle, 191 Ill. 566, 61 N. E. 435; Union Bank v. Barker, 3 Barb. Ch. 358; Black v. Black, 26 N. J. Eq. 431; Noyes v. Thorpe, 73 N. H. 481, 12 L.R.A. (N.S.) 636, 62 Atl. 787; Livingston v. Harris, 3 Paige, 528; Livingston v. Tompkins, 4 Johns. Ch. 415, 8 Am. Dec. 598; Union Glass Co. v. First Nat. Bank, 10 Pa. Co. Ct. 565; State ex rel. Atty Gen. v. Simmons Hardware Co. 109 Mo. 118, 15 L.R.A. .676, 18 S. W. 1125.

For the present we shall refer to but one of these cases, Robson v. Doyle, 191 Ill. 566, 61 N. E. 435. An action at law had been brought to recover a penalty under the Illinois Criminal Code inhibiting the gambling in puts and calls on wheat. It was not brought by one who had lost any money by such deals. Other similar actions were contemplated by plaintiff. He filed a bill for discovery to require defendant to disclose his dealings in puts and calls with others. The bill was demurred

In sustaining the demurrer it was said, among other things: "So far as the bill is filed to obtain evidence for the purpose of commencing suits in the future and recovering penalties from the defendant, it is bad beyond all question. That part of the bill not only seeks to compel the defendant to disclose a cause of action against himself for penalties for transgressing the law where the bill shows no cause of action whatever, but it is purely a fishing bill so far as it seeks such a discovery. It does not seem to be contended that the bill in that respect is authorized by any principle of the law or any statutory provision. The suits at law are not for the recovery of anything which the complainant has lost or paid, but are purely prosecutions in special actions on the case for penalties for violations of the Penal Code. The purpose of the discovery asked for is to enable the plaintiff to

maintain the prosecution and recover the penalties. The very purpose of the discovery is to subject the defendant to the penalties prescribed by the statute and with the sole object of recovering such penalties. Now, courts of equity have always withheld their aid in actions which were penal in their nature, and would never compel a defendant to disclose facts which would expose him to criminal punishment or prosecution, or to pains, penalties, fines, or forfeitures. A defendant may refuse to answer not only as to facts directly criminating him, but as to any fact which might form a link in the chain of evidence establishing his liability to punishment, penalty, or forfeiture. 1 Dan. Ch. Pr. 561-569; 2 Dan. Ch. Pr. 1557; 1 Pom. Eq. Jur. §§ 196, 202; 6 Enc. Pl. & Pr. 742, 744. This was the settled rule of the English courts of equity, and the principle was made a part of our fundamental law in the state and federal Constitutions."

This case, it will be noted, belongs to that class of cases to which we have adverted, where the bills are filed solely for discovery of acts criminal in their nature. These bills show upon their face that the disclosure sought is of facts which tend to establish the violation of a penal statute and are, therefore, bad on demurrer. But the case is in line with the many other holdings that a defendant may not be required by his answer to state facts which will tend to criminate himself, and this must be regarded as the settled law both in England and in this country.

and that without it a court of equity had the inherent power to abate a nuisance. And in Detroit Realty Co. v. Barnett (Detroit Realty Co. v. Oppenheim) 156 Mich. 385, 21 L.R.A. (N.S.) 585, 120 N. W. 804, it was said by Mr. Justice Hooker, speaking for the court: "We have read the testimony, and unhesitatingly say that a more obvious case of private nuisance has not been presented to this court within the recollection of the oldest member, and none has been more clearly proved. We must also confess our ignorance of authorities which would justify the court in his conclusion that, while there is a jurisdiction in a court of equity to abate a private nuisance, ordinarily it has not jurisdiction if it is so much of a nuisance as to make criminals of those who maintain it. We find such authority neither in the brief of counsel nor in the opinion of the court, and the proposition is so at variance with the settled law that we are not surprised at its absence."

This is in consonance with numerous holdings in other states many of which are cited in plaintiff's brief; we quote from but one of them. In State v. Rabinowitz, 85 Kan. 841, 39 L.R.A. (N.S.) 187, 118 Pac. 1040, it is said: "The fact that the maintaining of a common nuisance is made a public offense, or that special provision is made for its abatement, is not necessarily a bar to the enjoining of a public nuisance by a court of equity. While courts of equity cannot be used to punish crime or enforce the criminal laws, still, if the acts done and threatened to be done are such as to bring them within the jurisdiction and power of a court of equity, its arm is not shortened by the fact that the same acts may be denounced as a crime. The mere criminality of an act, whether it be a public or private nuisance, will not deprive the injured party of his equitable remedies nor shelter the wrongdoer from the judgment of a court of equity."

We have a statute, Comp. Laws 1915, § 12,554, permitting the call

reason.

Should the bill have been dismissed? If so, it necessarily follows that many powers exercised by equity courts for centuries must be curtailed. Bills to abate nuisances so flagrant as to amount to a crime may no longer be maintained, trustees who have embezzled the funds of their cestuis que trustent may no longer be required to account in equity, fraudulent transactions amounting to a conspiracy may not be remedied by courts of equity, bills for divorce on the grounds of adultery or on the ground of personal violence amounting to assault and battery will not lie, and the criminal conduct of defendant which he is not obliged to disclose by his answer

Nuisances-bill to abate-when not dismissed.

would operate as a shield to protect him from the enforcement of his opponents' rights. Such is not the law and cannot be. The constitutional rights of the defendant must be protected, but the constitutional rights of the plaintiff to his day in court must be likewise protected.

We have pointed out that in a considerable number of the cases the bills were filed solely for discovery, and where they show on their face that to require an answer would invade defendant's constitutional rights they have been dismissed on demurrer. In such cases the discovery sought was of facts which would tend to criminate defendant, and his answer under such circumtances could be used in evidence against him in a criminal proceeding. Such bills were properly dismissed on demurrer, and in Claridge v. Hoare, 14 Ves. Jr.

59, 33 Eng. Reprint, 443, it was held that the the defendant could protect himself from discovery by plea. But in Fisher v. Owen, L. R. 8 Ch. Div. 646, it was held (we quote from the syllabus): "Held, on appeal, that supposing the matter inquired after to be an indictable offence, that was no reason for striking out an interrogatory, which, being relevant, was not scandalous; and that the remedy of the defendant was to decline to answer on the ground that his answer might tend to criminate."

In Marshall v. Riley, 7 Ga. 367, it was said by the court: "The party called on to answer, under this act, may refuse to do so and risk the consequences, or else he may answer under protest as to the legality of the testimony, and insist upon his objections on the trial. By pursuing the latter course, as was done in the present case, he waives no legal right; and should his objections be sustained, the evidence thus extorted will be rejected at the hearing."

And in Adam's Equity, 8th ed. 4, it is said: "If the facts are such as to exclude both a demurrer and a plea, the privilege may be claimed by anwer, and if the defendant states in his answer that he cannot give the information asked without affording evidence of his crime, he will not be compelled to give it."

In Black v. Black, 26 N. J. Eq. 431, the bill was filed for a divorce on the grounds of adultery. It also sought discovery as to the adulterous acts. It was sustained as bill for divorce, but dismissed as to discovery. Here the bill is filed solely to abate a nuisance. Discovery is not sought. There is no showing before the court that defendant may not truthfully answer all the allegations of the bill without in any way criminating itself or furnishing criminating evidence.

The privilege is a personal one (28 R. C. L. 430), and numerous cases are found which hold that a witness who has been served with subpœna must attend the court, and, if a subpoena duces tecum is served to