Argument for Plaintiffs in Error. 201 U. S. upon various grades of paper manufactured by it and sold by or through the defendant the General Paper Company, are and have been, since the 5th day of July, 1900, equalized or the profits arising from the sale of such paper distributed or apportioned as between the defendants? “MR. FLANDERS: All objections renewed, and I give the witness the same advice. "(No answer.) "Q. Do you refuse, Mr. Nelson, to produce the books? "MR. FLANDERS: As I said before, you may assume for the purposes of these questions that the books and all the papers called for are present in court, but on behalf of the Hennepin Paper Company and the witness and the General Paper Company I decline to submit those to the inspection of the Government counsel. "MR. KELLOGG: Or to allow them or any part of them to be put in evidence, Mr. Flanders? "MR. FLANDERS: Yes." Other facts will appear in the opinion. Mr. James G. Flanders, with whom Mr. Charles F. Fawsett and Mr. William Brace were on the brief, for plaintiffs in error in these cases and for appellants in Nos. 381, 382, 383, 384 and 385 argued simultaneously herewith.1 The evidence, documentary and oral, which the witnesses were required to produce was not shown to be material to plaintiff's case. The documentary evidence called for is the property of the General Paper Company or some other of the defendant corporations. The proceeding, therefore, is a method of compelling the production of books and documents belonging to parties to the suit, and it is governed by the rules prescribed for the protection of parties from whom a discovery is demanded. The right of a plaintiff in equity to the benefit of a defendant's oath is limited to a discovery of such material facts as relate 1 Alexander v. United States, post, p. 117. 201 U.S. Argument for Plaintiffs in Error. to the plaintiff's case and does not extend to a discovery of the manner in which, or of the evidence by means of which, the defendant's case is to be established. 1 Daniell's Ch. Pl. & Pr. 5 Am. ed. *579, 580; Wigram's Law of Discovery, 1st Am. ed. 15; Story's Eq. Pl. §§ 565, 568. The plaintiff must show by clear averment the materiality of the documents sought to be disclosed. This rule applies to proceedings under a statute to compel production upon or in preparation for trial. 23 Am. & Eng. Ency. of Law, 176; Owhyee L. & I. Co. v. Tautphaus, 109 Fed. Rep. 547; Condict v. Wood, 25 N. J. L. 319; Bank v. Mansfield, 48 Illinois, 494; Lester v. People, 150 Illinois, 408; Bentley v. People, 104 Ill. App. 353; Wynn v. Taylor, 109 Ill. App. 603; Walsh v. Press Co., 48 App. Div. N. Y. 333; S. F. Copper M. & R. Co. v. Humphrey, 111 Fed. Rep. 772; Eschbach v. Lightner, 34 Maryland, 528, 533; Jenkins v. Bennett, 40 S. Car. 393, 400; Berry v. Matthews, 7 Georgia, 457, 462, 463. A plaintiff's right to any compulsory production of books is strictly limited to such documents as contain evidence relevant to his case. His right to inspect is never larger than his right to read in evidence. The defendant is not compelled to discover his evidence if it cannot tend to establish affirmatively the case of the plaintiff. Hare on Discovery, 187, 198; Compton v. Earl Gray, 1 Y. & J. 154; Bolton v. Liverpool, 3 Sim. 489; S. C., 1 My. & K.; Harris v. Harris, 3 Hare, 450; Van Kleeck v. Ref. Dutch Ch., 6 Paige, 600; S. C., 20 Wend. 458. Before the plaintiff is entitled to the production of a given document he must show aliunde that its contents are such as to entitle him to read it in evidence. He cannot compel production in order to prove that he is entitled to production. Wigram's Law of Discovery, § 293; Story v. Lennox, 1 Mył. & Cr. 534; Langdell on Eq. Pl. § 164; Bligh v. Benson, 7 Price, 205; Stroud v. Deacon, 1 Vesey, 27; Barnett v. Noble, 1 Jacob & W. 227. Any party who is required to produce his books of account or other documents, may seal such portions thereof as he swears Argument for Plaintiffs in Error. 201 U.S. contain nothing relating to the purposes of the discovery sought, and his affidavit that the parts so sealed do not relate to the matters in litigation is sufficient protection. 23 Am. & Eng. Ency. of Law, 182; 2 Wait's Pr. 548; Titus v. Cortelyou, 1 Barb. 444; Robbins v. Davis, 1 Blatch. 238, 242; Campbell v. French, 2 Cox Ch. Cas. 286; Girard v. Penswick, 1 Wilson Ch. 222; Pynchon v. Day, 118 Illinois, 9. Under Rev. Stat. § 724 it has been held that production will only be ordered where a discovery would be decreed under the same circumstances in chancery. Jacques v. Collins, 2 Blatch. 23. See Caspary v. Carter, 84 Fed. Rep. 416; Birchoffsheim v. Brown, 29 Fed. Rep. 341; Ryder v. Bateman, 93 Fed. Rep. 31; Bloede Co. v. Bancroft & Sons Co., 98 Fed. Rep. 175; Boyd v. United States, 116 U. S. 616. The doctrine is not confined to documentary evidence. It applies also to the case of oral testimony. The materiality of any question must be made to appear before a witness can be required to answer it and before he can be adjudged guilty of a contempt of court for a refusal to answer. The leading case is In re William Judson, 3 Blatch. 148. See also In re Allis, 44 Fed. Rep. 216; Interstate Commerce Commission v. Brimson, 154 U. S. 447. The evidence, documentary and oral, required to be produced, if material to the plaintiff's case, is in the nature of incriminating evidence which the witnesses and the defendants are privileged from furnishing to the plaintiff under the Fourth and Fifth Amendments of the Federal Constitution and the well recognized principles of equity procedure. The discovery which by the orders appealed from the witnesses are required to make, might also tend to subject them to penalties and forfeitures under the laws of the State of Wisconsin. Wisconsin Statutes (1898), §§ 1747e, 1747h; Counselman v. Hitchcock, 142 U. S. 547; United States v. Saline Bank, 1 Pet. 100. It is not within the province of Congress to suspend the operation of these state statutes or to interfere with their enforce 201 U.S. Argument for Plaintiffs in Error. ment in their relation to trade within the State, and therefore the immunity clause would be ineffectual to relieve the appellants against liability under the state law. The jurisdiction of state authority over trade within the State is as exclusive and unqualified as the jurisdiction of Congress over trade between the States. Addyston Pipe Co. v. United States, 175 U. S. 211 (where injunction previously issued was modified to make it conform to this rule); Allen v. Pullman Co., 191 U. S. 171; National Cotton Oil Co. v. Texas, 197 U. S. 115. It is the settled law of this court that the Fifth Amendment has no application to state courts and their proceedings under state laws. Pumpelly v. Green Bay Co., 13 Wall. 166; Brown v. Walker, 161 U. S. 591, distinguished. These Amendments to the Constitution were merely declaratory of the equity and common law rules of evidence, and it was firmly settled by them at the time of the adoption of the Amendments that no person could be compelled to discover any fact, either by producing documents or answering questions, which might subject him either directly or eventually to liability to a penalty or forfeiture, or anything in the nature of a penalty or forfeiture. 1 Daniell's Chancery Pleading & Practice, 5th Am. ed. * 562, 563; 2 Story's Eq. Jur. § 1494; 1 Pomeroy's Eq. Jur. 202; Livingston v. Harris, 3 Paige, 527; aff'd 11 Wend. 329; Northrop v. Hatch, 6 Connecticut, 361, 363; Livingston v. Tompkins, 4 Johns. Ch. 432, and cases there cited; Vanderveer v. Holcomb, 17 N. J. Eq. 91; United States v. National Lead Co., 75 Fed. Rep. 94; Newgold v. American Electrical &c. Co., 108 Fed. Rep. 341; United States v. Boyd, 116 U. S. 631. The consequences which must result to the appellants from the passing of the decree prayed for in the complaint are in the nature of a forfeiture. They should not be required to furnish the evidence to subject them to such forfeiture. 13 Am. & Eng. Ency. of Law, 54. The witnesses were entitled to decline to answer not only on Argument for Plaintiffs in Error. 201 U. S. the ground of personal privilege, but also on the ground that their answers would be the answers of the General Paper Company and the other defendants whose officers and directors they were, and might tend to subject said defendants to fines, penalties and forfeitures and to loss or damage in the nature of a forfeiture. A corporation is a person and as such entitled to the privileges and immunities of persons. Covington Turnpike Co. v. Sanford, 164 U. S. 578. It performs its functions only through its officers and agents and they cannot be compelled to testify. State v. Simmons Hardware Co., 15 L. R. A. 676; Davis v. Lincoln Natl. Bank, 4 N. Y. Supp. 373; Bank of Oldtown v. Houlton, 21 Maine, 502. The orders are appealable under the judiciary act of March 3, 1891, and under the act of February 11, 1903, to expedite the determination of suits in equity under the Anti Trust Act and the Interstate Commerce Act. In appealing from the order of the Circuit Court appellants have followed the practice indicated in the two cases of Interstate Commerce Commission v. Brimson, 154 U. S. 447, and Interstate Commerce Commission v. Baird, 194 U. S. 25. In each case it was held that the application by the Interstate Commerce Commission made a "case" and that the order denying the application was a final order and therefore appealable. The two cases cited differ from the present ones only in this: that no action was there pending in any Circuit Court to which the proceedings to compel the testimony of witnesses and the production of books and papers could be said to be ancillary. Otherwise, however, the proceeding itself was in every substantial respect the same as that adopted in the present cases. The words "final decree" have been given a liberal and reasonable construction as respects the right of appeal. Eau Claire v. Payson, 107 Fed. Rep. 552. There may be more than one final order and more than one appeal in the same suit. Trustees v. Greenough, 105 U. S. 527; Tuttle v. Claflin, 88 Fed. Rep. 122; Rouse v. Letcher, 156 U. S. 47. |