U.S. Supreme Court Shapiro v. United States, 335 U.S. 1 (1948) Shapiro v. United
States No. 49 Argued October 23,
1947 Decided June 21, 1948 335 U.S.
1 CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE SECOND
CIRCUIT Syllabus 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. 335 U. S.
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. 335 U. S.
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. 335 U. S. 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, recordkeeping and
inspection provisions in aiding effective enforcement, did not Page 335 U. S. 2 intend § 202(g) to proffer a "gratuity to crime" by granting
immunity to custodians of nonprivileged records. Pp. 335 U. S.
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. 335 U. S.
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. 335 U. S.
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. 335 U. S.
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. 335 U. S.
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. 335 U. S.
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. 335 U. S.
29 -35.

															3. This construction of § 202(g) of the Price Control Act raises
no serious doubts as to its constitutionality. Pp. 335 U. S.
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
transactions Page 335 U. S. 3 in which the dealer could engage solely by virtue of a license
granted under the statute. Pp. 335 U. S.
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. 335 U. S.
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. 335 U. S. 36 .

															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.
[ Footnote 1 ] A plea in bar,
claiming immunity from prosecution based on § 202(g) [ Footnote 2 ] Of the Act, was Page 335 U. S. 4 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, 335 U. S. 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 1st, 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 Page 335 U. S. 5 pursuant to M.P.R.'s 271 and 426. [ Footnote 3 ]"

															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 self-incrimination 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 compulsory Page 335 U. S. 6 testimony immunity provision which incorporates by reference the
Compulsory Testimony Act of 1893. This provision, in conjunction
with broad recordkeeping requirements, has been included not merely
in a temporary wartime measure, but also, in substantially the same
terms, in virtually all of the major regulatory enactments of the
Federal Government. [ Footnote
4 ] Page 335 U. S. 7 It is contended that a broader construction of the scope of the
immunity provision than that approved by the Circuit Court of
Appeals would be more consistent with the congressional aim, in
conferring investigatory powers upon the Administrator, to secure
prompt disclosure of books and records of the private enterprises
subjected to OPA regulations. In support of this contention, it is
urged that the language and legislative history of the Act indicate
nothing more than that § 202 was included for the purpose of
"obtaining information," and that nothing in that history throws
any light upon the scope of the immunity afforded by subsection
(g). We cannot agree with these contentions. For the language of
the statute 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 those records for enforcement action by granting an immunity
bonus to individuals compelled to disclose their required records
to the Administrator. Page 335 U. S. 8 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 the administration and enforcement of this Act and regulations, orders, and price
schedules thereunder." [ Footnote
5 ]

															The legislative history of § 202 casts even stronger light on
the meaning of the words used in that section. On July 30, 1941,
the President of the United States, in a message to Congress,
requested price control legislation conferring effective authority
to curb evasion and bootlegging. [ Footnote 6 ] Two days later, the Price Control Bill was
introduced in the House by Representative Steagall, and referred to
the Committee on Banking and Currency.

															As introduced, and as reported out of the Committee on November
7, 1941, the bill included broad investigatory, recordkeeping,
licensing, and other enforcement powers to be exercised by the
Administrator. [ Footnote 7 ]
While it Page 335 U. S. 9 was before the House, Representative Wolcott on November 28,
1941, offered as a substitute for § 201 a series of Page 335 U. S. 10 amendments, one of which authorized the Administrator

															"to subpoena documents and witnesses for the purpose of
obtaining information in respect to the establishment of price
ceilings, and a review of price ceilings. [ Footnote 8 ]"

															This amendment was adopted. Thereupon, Representative Wolcott
moved to strike out as "redundant" the much broader and far more
rigorous provisions in the bill (§ 202) which authorized the
Administrator to "require the making and keeping of records and
other documents and making of reports," and to

															"obtain or require the furnishing of such information under oath
or affirmation or otherwise, as he deems necessary or proper to
assist him in prescribing any regulation or order under this act,
and in the administration and enforcement of the act, and
regulations and orders thereunder. [ Footnote 9 ]"

															This amendment too was accepted by the House. [ Footnote 10 ]

															It is significant to note that the Senate Committee on Banking
and Currency began its consideration of the Page 335 U. S. 11 bill on December 9, 1941, the day after Congress declared the
existence of a state of war between this country and the Imperial
Government of Japan. Appearing before the Senate Committee in this
wartime setting, the proponents of the original measure requested
and secured the restoration of the enforcement powers which the
House had stricken. [ Footnote
11 ] They asserted that a major aspect of the investigatory
powers contained in the bill as originally drafted was to enable
the Administrator to ferret out violations and enforce the law
against the violators. [ Footnote
12 ] And it was pointed out that, in striking down the authority
originally given the Administrator in the committee bill to require
the maintenance of records, the House had substantially stripped
him of his investigatory and enforcement powers,

															"because no investigatory power can be effective without the
right to insist upon the maintenance of records. By the simple
device of failing to keep records of pertinent transactions, or by
destroying or falsifying such records, a person may violate the Act
with impunity and little fear of detection. Especially is this true
in the case of price control legislation, which operates on many
diverse industries and commodities, each industry having its own
trade practices and methods of operation. " Page 335 U. S. 12 "The House bill also deprives the Administrator of the power to
require reports and to make inspections and to copy documents. By
this deprivation, the Administrator's supervision over the
operation of the act is rendered most difficult. He has no
expeditious way of checking on compliance. He is left without ready
power to discover violations."

															"It should not be forgotten that the statute to be administered
is an emergency statute. To put teeth into the Price Control Act,
it is imperative that the Administrator's investigatory powers be
strong, clear, and well adapted to the objective. . . . [ Footnote 13 ]"

															Emphasis was placed on the restoration of licensing provisions,
which the House had deleted from the Price Control Bill as
originally drafted. The General Counsel for the OPA contended that
licensing was the backbone of enforcement of price schedules and
regulations. [ Footnote 14 ]
The Page 335 U. S. 13 World War I prototype of the Price Control Act, the Lever Act,
had contained authority for the President to license the
distribution of any necessaries whenever deemed essential "in order
to carry into effect any of the purposes of this Act. . . ."
[ Footnote 15 ] It was pointed
out that

															"The general licensing regulations prescribed under the Lever
Act, applicable to all licensees, required the making of reports
(rule 1), the permitting of inspection (rule 2), and the keeping of
records (rule 3). [ Footnote
16 ]"

															And it was noted that licensing had been employed in connection
with the fuel provisions of the Act

															" as a method of obtaining information, of insuring universal
compliance, and of enforcing refunds of overcharges and the payment
of penalty charges to war charities. [ Footnote 17 ]"

															By licensing Page 335 U. S. 14 middlemen, "Violations were readily discovered by examination of
the records which each licensee was required to submit." [ Footnote 18 ]

															With this background, [ Footnote 19 ] Congress restored licensing powers to the
Administrator in the Price Control Bill as Page 335 U. S. 15 enacted, § 205, 50 U.S.C.App. § 925(f), and provided for the
suspension by court action of the license of any person found to
have violated any of the provisions of the license or price
schedules or other requirements. Nonretail fruit dealers, including
petitioner in the present case, were licensed under § 9a of Maximum
Price Regulation No. 426, 8 F.R. 16411 (1943).

															It is difficult to believe that Congress, whose attention was
invited by the proponents of the Price Control Act to the vital
importance of the licensing, recordkeeping, and inspection
provisions in aiding effective enforcement of the Lever Act, could
possibly have intended § 202(g) to proffer a "gratuity to crime" by
granting immunity to custodians of nonprivileged records. Nor is it
easy to conceive that Congress could have intended private
privilege to attach to records whose keeping it authorized the
Administrator to require on the express supposition that it was
thereby inserting "teeth" into the Price Control Act, since the
Administrator, by the use of such records, could readily
discover violations, check on compliance, and prevent
violations from being committed "with impunity." In conformance with these views, the bill as passed by Congress
empowered the Administrator to require the making and keeping of
records by all persons subject to the statute, and to compel, by
legal process, oral testimony of witnesses and the production of
documents deemed necessary in the administration and enforcement of
the statute and regulations. It also included the immunity proviso,
subsection (g) of § 202, as to which no special attention seems to
have been paid in the debates, although it was undoubtedly
included, as it had been in other statutes, as a "usual
administrative provision," [ Footnote 20 ] intended to fulfill the purpose customarily
fulfilled by such a provision. Page 335 U. S. 16 The inescapable implications of the legislative history related
above concerning the other subsections of § 202 would appear to be
that Congress did not intend the scope of the statutory immunity to
be so broad as to confer a bonus for the production of information
otherwise obtainable.

															Moreover, there is a presumption that Congress, in reenacting
the immunity provision of the 1893 Act, was aware of the settled
judicial construction of the statutory immunity. In adopting the
language used in the earlier act, Congress "must be considered to
have adopted also the construction given by this Court to such
language, and made it a part of the enactment." [ Footnote 21 ] That judicial construction is
made up of the doctrines enunciated by this Court in spelling out
the nonprivileged status of records validly required by law to be
kept, in Wilson v. United States, 221 U.
S. 361 (1911), and the inapplicability of immunity
provisions to nonprivileged documents, in Heike v. United
States, 227 U. S. 131 (1914).

															In the former case, Wilson, the president of a corporation, was
required by subpoena to produce the corporate books in his custody
before a grand jury. He appeared before the grand jury, but refused
to deliver up the records on the ground that their contents would
tend to incriminate him, and claimed privilege under the Fifth
Amendment. On review in this Court of the judgment committing him
for contempt, Wilson based his defense in part on the theory that
he would have been protected in his constitutional privilege
against self-incrimination had he been sworn as a witness, and that
the government's failure to permit him to be sworn could not
deprive him of such protection. [ Footnote 22 ] This argument was disposed Page 335 U. S. 17 of by the Court simply on the ground that a corporate officer
has no such constitutional privilege as to corporate records in his
possession, even though they contain entries made by himself which
disclose his crime. Mr. Justice Hughes, announcing the opinion of
the Court, based the decision on the reasoning (which this Court
recently cited with approval in Davis v. United States, 328 U. S. 582 , 328 U. S.
589 -590 (1946)), that

															"the physical custody of incriminating documents does not of
itself protect the custodian against their compulsory production.
The question still remains with respect to the nature of the
documents and the capacity in which they are held. It may yet
appear that they are of a character which subjects them to the
scrutiny demanded and that the custodian has voluntarily assumed a
duty which overrides his claim of privilege. . . . The principle
applies not only to public documents in public offices, but also to records required by law to be kept in order that there may be
suitable information of transactions which are the appropriate
subjects of governmental regulation, and the enforcement of
restrictions validly established. There, the privilege which exists
as to private papers cannot be maintained. [ Footnote 23 ]"

															As illustrations of documents meeting this "required records"
test, the Court cited with approval state supreme court decisions
that business records kept under requirement of law by private
individuals in unincorporated enterprises were "public
documents, which the defendant was required to keep, not for his
private uses, but for the benefit of the public, and for public Page 335 U. S. 18 inspection." [ Footnote
24 ] The noncorporate records treated as public in those cases
concerned such individuals as druggists required by statute to keep
a record of all sales of intoxicating liquors. [ Footnote 25 ] The corporate and
noncorporate Page 335 U. S. 19 businesses required by the Price Control Act to keep records
embrace a much greater number of enterprises than those similarly
regulated by the states and municipalities. But, since it is
conceded that the increased scope of regulation under the wartime
measure here involved does not render that Act unconstitutional,
the required records doctrine which this Court approved as applied
to noncorporate businessmen in the state cases would appear equally
applicable in the case at bar.

															In the Heike case, this Court, per Holmes, J., laid
down a standard for the construction of statutory immunity provisos
which clearly requires affirmance of the decision of the circuit
court here:

															". . . the obvious purpose of the statute is to make evidence
available and compulsory that otherwise could not be got. We see no
reason for supposing that the act offered a gratuity to crime.
It should be construed, so far as its words fairly allow the
construction, as coterminous with what otherwise would have been
the privilege of the person concerned. [ Footnote 26 ]"

															In view of the clear rationale in Wilson, taken
together with the ruling in Heike as to how statutory
immunity provisos should be construed, the conclusion seems
inevitable that 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. Page 335 U. S. 20 Since he could assert no valid privilege as to the required
records here in question, he was entitled to no immunity under the
statute thus viewed.

															The traditional rule that re-enactment of a statute creates a
presumption of legislative adoption of previous judicial
construction may properly be applied here, since the Court in Heike
regarded the 1903 immunity statute, 49 U.S.C. § 47, there construed
as identical, in policy and in the scope of immunity furnished,
with the Compulsory Testimony Act of 1893, which has been reenacted
by incorporation into the Price Control Act.

															In addition, scrutiny of the precise wording of § 202(g) of the
latter statute indicates that the draftsmen of that section went to
some pains to ensure that the immunity provided for would be
construed by the courts as being so limited. The construction
adopted in the Heike decision was rendered somewhat
difficult because neither the Compulsory Testimony Act of 1893 nor
the immunity proviso in the 1903 Act made any explicit reference to
the constitutional privilege against self-incrimination, with whose
scope the Court nonetheless held the immunity to be coterminous.
Section 202(g), on the other hand, follows a pattern set by the
Securities Act of 1933, and expressly refers to that privilege,
thus apparently seeking to make it doubly certain that the courts
would construe the immunity there granted as no broader than the
privilege:

															" 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 . . . shall apply
with respect to any individual who specifically claims such
privilege. "

															A comparison of the precise wording of § 202(g) with the wording
of immunity provisions contained in earlier Page 335 U. S. 21 statutes [ Footnote 27 ]
readily suggests one function intended by the drafters of § 202(g)
to be performed by the additional phrases expressly referring to
"privilege" -- viz., that of underlining the legislative
intention of requiring an exchange of constitutional privilege for
immunity, an intent which the Court had previously thought
discernable even in the less obvious terms used by the drafters of
the earlier statutes. Thus, the immunity provisions of the
Compulsory Testimony Act can be relied upon here only if the two
prerequisites set forth in § 202(g) are satisfied: (1) that the
person seeking to avail himself of the immunity could actually have
been excused, in the absence Page 335 U. S. 22 of this section from complying with any of its requirements
because of his constitutional privilege against self-incrimination,
and (2) that the person specifically claim such privilege.
Obviously if prerequisite (1) is not fulfilled, the mere fact that
the person specifically claims a nonexistent privilege was not
intended by Congress to entitle him to the benefit of the immunity.
And this is so whether the statute be construed with particular
reference to its grammar, its historical genesis, or its rational
function.

															Petitioner does not deny that the actual existence of a genuine
privilege against self-incrimination is an absolute prerequisite
for the attainment of immunity under § 202(g) by a corporate
officer who has been compelled by subpoena to produce required
records; and that, under the Heike ruling, the assertion
of a claim to such a privilege in connection with records which are
in fact nonprivileged is unavailing to secure immunity, where the
claimant is a corporate officer. But, while conceding that the
statute should be so construed where corporate officials are
concerned, the petitioner necessarily attributes to Congress the
paradoxical intention of awarding immunity in exchange for a claim
of privilege as to records of a claimant engaged in noncorporate
business, though his business is similarly subjected to
governmental price control, and its required records are, under the Wilson rationale, similarly nonprivileged.

															The implausibility of any such interpretation of congressional
intent is highlighted by the unquestioned fact that Congress
provided for price regulations enforceable against unincorporated
entrepreneurs as well as corporate industry. It is also
unquestionable that Congress, to ensure that violations of the
statute should not go unpunished, required records to be kept of
all relevant buying and selling transactions by all individual and
corporate business subject to the statute. If these aspects of
congressional Page 335 U. S. 23 intention be conceded, it is most difficult to comprehend why
Congress should be assumed to have differentiated sub
silentio, for purposes of the immunity proviso, between
records required to be kept by individuals and records required to
be kept by corporations. Such an assumption carries with it the
incongruous result that individuals forced to produce records
required to be kept for the Administrator's inspection and use in
enforcing the price regulations, would be given a bonus of immunity
if engaged in noncorporate business, thus rendering the records of
noncorporate enterprise virtually useless for enforcement purposes,
[ Footnote 28 ] whereas
individuals disclosing the very same type of required records but
engaged in corporate enterprise would not be given that bonus. In
effect, this is to say that Congress intended the immunity proviso
to frustrate a major aim of its statutory requirement of
recordkeeping and record inspection Page 335 U. S. 24 so far as it applies to noncorporate businessmen, but not so far
as it applies to corporate officers. [ Footnote 29 ]

															It is contended that to construe the immunity proviso as we have
here is to devitalize, if not render meaningless, the phrase "any
requirements" [ Footnote 30 ]
which appears in the opening clause of § 202(g): "No person shall
be excused from complying with any requirements under this section
because of his privilege against self-incrimination. . . ." It is
urged that, since § 202 includes among its requirements Page 335 U. S. 25 the furnishing of information under oath, the making and keeping
of records and reports, the inspection and copying of records and
other documents, and the appearing and testifying or producing of
documents, the immunity provided must cover compliance with any one
of these requirements. The short answer to that contention is that
the immunity provided does cover compliance with any of these
requirements as to which a person would have been excused from
compliance because of his privilege, were it not for the statutory
grant of immunity in exchange for such privilege. [ Footnote 31 ] The express language of the
proviso, as well as its historical background, readily suggests
this reasonable interpretation. Even those who oppose this
interpretation must and do concede that Congress had no intention
of removing the excuse of privilege where the privilege is absent
from the outset because the records whose production is ordered and
concerning which privilege is asserted are corporate records. If
this concession is made, surely logic as well as history requires a
similar reading of the proviso in connection with validly required
noncorporate records, as to which privilege is similarly absent
from the outset.

															If the contention advanced against our interpretation be valid,
the Court must have erred in its construction of the immunity
proviso in the Heike case. For the 1893 Act, 49 U.S.C. §
46, which it was in effect construing, provides that,

															"No person shall be excused Page 335 U. S. 26 from attending and testifying or from producing books, papers,
tariffs, contracts, agreements, and documents before the Interstate
Commerce Commission . . . 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 . . . for or on account of any
transaction . . . concerning which he may testify, or produce
evidence, documentary or otherwise. . . ."

															Thus, the immunity part of the 1893 statute extended to any
documentary as well as oral testimony concerning which there might
be a claim of privilege. And included among the documents which the
immunity-seeker might be compelled to produce were records
maintained by common carriers in compliance with the requirements
of the Interstate Commerce Act, [ Footnote 32 ] and hence obviously within the definition of
public records set forth in the Wilson and Heike decisions. If the reasoning advanced against the interpretation of
§ 202(g) we have proposed were valid, then it might equally well be
contended that the Court in the Heike decision
devitalized, if not rendered meaningless, the phrase, "documentary
or otherwise" in the immunity section of the 1893 Act.

															Actually, neither the interpretation as applied in the Heike decision nor as expounded here renders meaningless
any of the words in the immunity provision. In each case, the
immunity proviso is set forth in conjunction with recordkeeping
requirements. And in each case, where the immunity provided
concerns documents whose production might otherwise be excused on
the ground of Page 335 U. S. 27 privilege, the documents referred to are and writings whose
keeping as records has not been required by valid statute
or regulation. Of course, all oral testimony by
individuals can properly be compelled only by exchange of immunity
in return for privilege. [ Footnote 33 ] Page 335 U. S. 28 The Court in the Heike case was confronted with the
further contention that the 1903 immunity statute, which was
immediately before him, had been passed when

															"there was an imperious popular demand that the inside working
of the trusts should be investigated, and that the people and
Congress cared so much to secure the necessary evidence that they
were willing that some guilty persons should escape, as that reward
was necessary to the end. [ Footnote 34 ]"

															In the light of the express statements in the legislative
history of the Price Control Act as to the enforcement role of the
investigatory powers, such an argument would hardly be tenable in
the present case. Yet even in the Heike case, where such
an argument had some elements of plausibility, the Court had no
difficulty in rejecting it in favor of the Government's contention
that "the statute should be limited as nearly as may be by the
boundaries of the constitutional privilege of which it takes the
place." [ Footnote 35 ]

															As a final answer, an understanding of the 1893 immunity
provision, based on its full historical context, should suffice to
explain the limited function contemplated by Congress in
incorporating that provision into the 1942 statute. The 1893
provision was enacted merely to provide an immunity sufficiently
broad to be an adequate Page 335 U. S. 29 substitute for the constitutional privilege, since previous
statutory provision for immunity had been found by the Court in Counselman v. Hitchcock, 142 U. S. 547 (1892), not to be coextensive with the privilege, thus rendering
unconstitutional the statutory requirements for compulsory
production of privileged documents and oral testimony. [ Footnote 36 ]

															The suggestion has been advanced that the scope of the immunity
intended by Congress should be ascertained not by reference to the
judicial and legislative history considered above, but by reference
to the principle expounded in Federal Trade Commission v.
American Tobacco Co., 264 U. S. 298 , 264 U. S. 307 (1924), of construing a broad grant of statutory authority so as to
avoid attributing to Congress "an intent to defy the Fourth
Amendment or even to come so near to doing so as to raise a serious
question of constitutional law."

															It is interesting to note that Congress, in enacting the Price
Control Bill, apparently did intend to rely upon the principle of American Tobacco in circumstances similar to those in
which that principle was originally applied: namely, to insure that
the power of inspection or examination would not conflict with the
prohibition against unreasonable searches and seizures contained in
the Fourth Amendment. Senator Brown, who was chairman of the
subcommittee on the Price Control Bill and one of the managers on
the part of the Senate Page 335 U. S. 30 appointed to confer with the House managers on the Senate
amendments, expressly stated it to be the view of the conferees
that § 202(a), which contained broad authorization to the
Administrator to "obtain such information as he deems necessary or
proper to assist him" in his statutory duties, was intended solely
to empower the Administrator to

															"obtain relevant data to enable him properly to discharge his
functions, preferably by requiring the furnishing of information
under oath or affirmation or otherwise as he may determine. It is
not intended, nor is any other provision of the Act intended, to
confer any power of inspection or examination which might conflict
with the Fourth Amendment of the Constitution of the United States. See opinion of Justice Holmes in Federal Trade
Commission v. American Tobacco Co., 264 U. S.
298 , 264 U. S. 307 . [ Footnote 37 ]"

															It was the abuse of the subpoena power to obtain irrelevant data
in the course of a "fishing expedition" with which the Court was
concerned in that case. It is clear that if the Administrator
sought to obtain data irrelevant to the effective administration of
the statute and if his right of access was challenged on the ground
that the evidence sought was "plainly incompetent or irrelevant to
any lawful purpose of the Administrator," [ Footnote 38 ] that objection could sustain a
refusal by the district court to issue a subpoena or other writ to
compel inspection. But there is no indication in the legislative
history that Congress intended the American Tobacco principle of construction to govern the immunity proviso of
subsection (g), particularly since the scope of that proviso had
been so well demarcated by the courts prior to its 1942
reenactment. And it is not insignificant that the one rule of
construction which this Court has, in the past, directly and Page 335 U. S. 31 expressly applied to the immunity proviso -- that

															"[i]t should be construed, so far as its words fairly allow the
construction, as coterminous with what otherwise would have been
the privilege of the person concerned [ Footnote 39 ]"

															-- was enunciated by Mr. Justice Holmes, who gave no sign of
repudiating that principle by his subsequent statements in the American Tobacco case.

															Even if the evidence of congressional intent contained in the
legislative history were less clear-cut and persuasive, and
constitutional doubts more serious than they appear to us, we
should still be unconvinced as to the applicability of the American Tobacco standard to the construction of the
immunity proviso in relation to documentary evidence which is
clearly and undeniably relevant, and the recording and keeping of
which the Administrator has properly required in advance. For, in
construing statutory immunities in such circumstances, we must heed
the equally well settled doctrine of this Court to read a statute,
assuming that it is susceptible of either of two opposed
interpretations, in the manner which effectuates, rather than
frustrates, the major purpose of the legislative draftsmen. The
canon of avoidance of constitutional doubts must, like the "plain
meaning" rule, give way where its application would produce a
futile result, or an unreasonable result "plainly at variance with
the policy of the legislation as a whole." [ Footnote 40 ] In the present case, not merely
does the construction Page 335 U. S. 32 put forward by the petitioner frustrate the congressional intent
as manifested by the legislative history, but it also shuts out the
illumination that emanates from key words and phrases in the
section when considered, as above, in the context of the history of
the Compulsory Testimony Act of 1893, and the construction that had
been placed upon it and similar provisos, prior to its
incorporation into the Price Control Act.

															There remains for consideration only the question as to whether
serious doubts of constitutionality are raised if the Price Control
Act is thus construed. This issue was not duly raised by
petitioner, and it becomes relevant, if at all, only because such
doubts are now said to be present if the immunity proviso is
interpreted as set forth above.

															It may be assumed at the outset that there are limits which the
government cannot constitutionally exceed in requiring the keeping
of records which may be inspected by an administrative agency and
may be used in prosecuting statutory violations committed by the
recordkeeper himself. But no serious misgiving that those bounds
have been overstepped would appear to be evoked when there is a
sufficient relation between the activity sought to be regulated and
the public concern so that the government can constitutionally
regulate or forbid the basic activity concerned, and can
constitutionally require the keeping of particular records, subject
to inspection by the Administrator. It is not questioned here that
Congress has constitutional authority to prescribe commodity prices
as a war emergency measure, and that the licensing and
recordkeeping requirements of the Price Control Act represent a
legitimate exercise of that power. [ Footnote 41 ] Accordingly, the principle enunciated in the Wilson case, and reaffirmed as recently as the Davis case, is clearly applicable here: Page 335 U. S. 33 namely, that the privilege which exists as to private papers
cannot be maintained in relation to

															"records required by law to be kept in order that there may be
suitable information of transactions which are the appropriate
subjects of governmental regulation, and the enforcement of
restrictions validly established. [ Footnote 42 ] " Page 335 U. S. 34 Even the dissenting Justices in the Davis case conceded
that "there is an important difference in the constitutional
protection afforded their possessors between papers exclusively
private and documents having public aspects," [ Footnote 43 ] a difference whose essence is that
the latter papers, "once they have been legally obtained, are
available as evidence." [ Footnote 44 ] In the case at bar, it cannot be doubted
that the sales record which petitioner was required to keep as a
licensee under the Price Control Act has "public aspects." Nor can
there be any doubt that when it was obtained by the Administrator
through the use of subpoena, as authorized specifically by § 202(b)
of the statute, it was "legally Page 335 U. S. 35 obtained," and hence "available as evidence." [ Footnote 45 ] The record involved in the
case at bar was a sales record required to be maintained under an
appropriate regulation, its relevance to the lawful purpose of the
Administrator is unquestioned, and the transaction which it
recorded was one in which the petitioner could lawfully engage
solely by virtue of the license granted to him under the statute.
[ Footnote 46 ]

															In the view that we have taken of the case, we find it
unnecessary to consider the additional contention by the government
that, in any event, no immunity attaches to the production of the
books by the petitioner because the Page 335 U. S. 36 connection between the books and the evidence produced at the
trial was too tenuous to justify the claim.

															For the foregoing reasons, the judgment of the Circuit Court of
Appeals is Affirmed. [ Footnote 1 ]

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

															[ Footnote 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 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 subjected 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. . . ."

															[ Footnote 3 ]

															Section 14 of Maximum Price Regulation 426, 8 Fed.Reg. 9546
(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."

															[ Footnote 4 ]

															Some of the statutes which include such provisions, applicable
to the records of noncorporate as well as corporate business
enterprises are listed below:

															Shipping Act, 1916 [46 U.S.C. §§ 826, 827, 814, 817, 820].

															Packers and Stockyards Act, 1921 [7 U.S.C. §§ 221, 222].

															Commodity Exchange Act of 1922 [7 U.S.C. §§ 15, 6, 7a].

															Perishable Agricultural Commodities Act, 1930 [7 U.S.C. §§ 499m,
499i].

															Communications Act of 1934 [47 U.S.C. §§ 409, 203, 211, 213(f),
220, 412].

															Securities Exchange Act of 1934 [15 U.S.C. §§ 78q, 78u].

															Federal Alcohol Administration Act, 1935 [27 U.S.C. §§ 202(c),
204(d); 26 U.S.C. § 2857; 15 U.S.C. §§ 49, 50].

															Federal Power Act, 1935 [16 U.S.C. §§ 825(a), 825f(g)].

															Industrial Alcohol Act of 1935 [26 U.S.C. §§ 3119, 3121(c)].

															Motor Carrier Act of 1935 [49 U.S.C. §§ 305(d), 304(a)(1),
311(d), 317, 318, 320, 322(g)].

															National Labor Relations Act, 1935 [29 U.S.C. §§ 156, 161].

															Social Security Act, 1935 [42 U.S.C. § 405(a, d, e, f)].

															Merchant Marine Act, 1936 [46 U.S.C. §§ 1124, 1211,
1114(b)].

															Bituminous Coal Act of 1937 [15 U.S.C. (1940 ed.) §§ 838, 833(a,
e, k), 840 (terminated, as provided in § 849)].

															Civil Aeronautics Act of 1938 [49 U.S.C. §§ 644, 483, 487, 492,
622(e) and (g), 673].

															Fair Labor Standards Act of 1938 [29 U.S.C. §§ 209, 211; 15
U.S.C. §§ 49, 50].

															Natural Gas Act, 1938 [15 U.S.C. §§ 717a, 717g, 717m].

															Railroad Unemployment Insurance Act, 1938 [45 U.S.C. §§ 362(a,
b, c, l), 359].

															Water Carriers Act of 1940 [49 U.S.C. §§ 916, 906, 913,
917(d)].

															Freight Forwarders Act, 1942 [49 U.S.C. § 1017(a, b, d), 1005,
1012, 1021(d)].

															In addition to the Price Control Act, the other major regulatory
statutes enacted in response to the recent wartime exigencies also
contain these provisions:

															Second War Powers Act [50 U.S.C.App. (Supp. V, 1946) §§ 633,
subsec. 2(a)(3, 4)].

															Stabilization Act of 1942 [50 U.S.C.App. (Supp. V, 1946) §§
967(b), 962].

															War and Defense Contract Acts [50 U.S.C.App. (Supp. V, 1946) §
1152(a), (3, 4)].

															War Labor Disputes Act [50 U.S.C.App. (Supp. V, 1946) §
1507(a)(3), (b)].

															Very recent regulatory statutes, whose construction may also be
affected or determined by the ruling of the Court in the present
case, include:

															Atomic Energy Act of 1946 [42 U.S.C. §§ 1812(a)(3),
1810(c)].

															Labor Management Relations Act of 1947, § 101, subsecs. 11, 6; §
207(c), 61 Stat. 136, 150, 140, 155.

															[ Footnote 5 ]

															Italics have been added here and in all other quotations in
which they appear, unless otherwise noted.

															[ Footnote 6 ]

															". . . the existing authority over prices is indirect and
circumscribed, and operates through measures which are not
appropriate or applicable in all circumstances. It has further been
weakened by those who purport to recognize need for price
stabilization, yet challenge the existence of any effective power.
In some cases, moreover, there has been evasion and bootlegging; in
other cases, the Office of Price Administration and Civilian Supply
has been openly defied."

															"Faced now with the prospect of inflationary price advances,
legislative action can no longer prudently be postponed. Our
national safety demands that we take steps at once to extend,
clarify, and strengthen the authority of the Government to act in
the interest of the general welfare."

															Doc.No.332, 77th Cong., 1st Sess. 3 (1941).

															[ Footnote 7 ] See 87 Cong.Rec. 9148 (1941) for the precise wording of
§ 202, which was then numbered § 211.

															The full text of § 202 as enacted is as follows:

															"(a) The Administrator is authorized to make such studies and
investigations, to conduct such hearings, and to obtain such
information as he deems necessary or proper to assist him in
prescribing any regulation or order under this Act, or in the
administration and enforcement of this Act and regulations, orders,
and price schedules thereunder."

															"(b) The Administrator is further authorized, by regulation or
order, to require any person who is engaged in the business of
dealing with any commodity, or who rents or offers for rent or acts
as broker or agent for the rental of any housing accommodations, to
furnish any such information under oath or affirmation or
otherwise, to make and keep records and other documents, and to
make reports, and he may require any such person to permit the
inspection and copying of records and other documents, the
inspection of inventories, and the inspection of defense-area
housing accommodations. The Administrator may administer oaths and
affirmations and may, whenever necessary, by subpoena require any
such person to appear and testify or to appear and produce
documents, or both, at any designated place."

															"(c) For the purpose of obtaining any information under
subsection (a), the Administrator may by subpoena require any other
person to appear and testify or to appear and produce documents, or
both, at any designated place."

															"(d) The production of a person's documents at any place other
than his place of business shall not be required under this section
in any case in which, prior to the return date specified in the
subpoena issued with respect thereto, such person either has
furnished the Administrator with a copy of such documents
(certified by such person under oath to be a true and correct copy)
or has entered into a stipulation with the Administrator as to the
information contained in such documents."

															"(e) In case of contumacy by, or refusal to obey a subpoena
served upon, any person referred to in subsection (c), the district
court for any district in which such person is found or resides or
transacts business, upon application by the Administrator, shall
have jurisdiction to issue an order requiring such person to appear
and give testimony or to appear and produce documents, or both; and
any failure to obey such order of the court may be punished by such
court as a contempt thereof. The provisions of this subsection
shall also apply to any person referred to in subsection (b), and
shall be in addition to the provisions of section 4(a)."

															"(f) Witnesses subpoenaed under this section shall be paid the
same fees and mileage as are paid witnesses in the district courts
of the United States."

															"(g) 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."

															"(h) The Administrator shall not publish or disclose any
information obtained under this Act that such Administrator deems
confidential or with reference to which a request for confidential
treatment is made by the person furnishing such information unless
he determines that the withholding thereof is contrary to the
interest of the national defense and security."

															"(i) Any person subpoenaed under this section shall have the
right to make a record of his testimony and to be represented by
counsel."

															56 Stat. 23, 30, as amended by § 105 of the Stabilization
Extension Act of 1944, 58 Stat. 632, 637, 50 U.S.C. § 922.

															[ Footnote 8 ]

															87 Cong.Rec. at 9232; see also id. at 9226.

															[ Footnote 9 ] Id. at 9231.

															[ Footnote 10 ] Id. at 9233.

															[ Footnote 11 ]

															As pointed out by the Senate Committee,

															". . . in amending the House bill, the committee has sought to
strengthen it. That bill, when we were not actually at war, might
have sufficed. If the authority granted had proved inadequate,
additional powers might have been sought, and there might have been
time to do so. But the swiftly moving pace of war, with evidences
of inflation already apparent, leaves little time for the luxury of
experiment. The need for price stability is urgent. . . ."

															S.Rep.No.931, 77th Cong., 2d Sess. 3 (Jan. 2, 1942).

															[ Footnote 12 ]

															Hearings before the Senate Committee on Banking and Currency on
H.R. 5998, 77th Cong., 1st Sess. 192(1941) (the reference is
contained in a brief filed with the Committee by the General
Counsel of the Office of Price Administration).

															[ Footnote 13 ] Id. at 193.

															It is apparently conceded that the written statement presented
to the Senate Committee by the General Counsel of the OPA in its
hearings sets forth the construction that this Court sustains in
affirming the judgment of the Circuit Court of Appeals for the
Second Circuit in this case. We may accord to the construction
expounded during the course of the hearings at least that weight
which this Court has in the past given to the contemporaneous
interpretation of an administrative agency affected by a statute,
especially where it appears that the agency has actively sponsored
the particular provisions which it interprets. And we may treat
those contemporaneous expressions of opinion as

															"highly relevant and material evidence of the probable general
understanding of the times and of the opinions of men who probably
were active in the drafting of the statute. As such they are
entitled to serious consideration. . . ." White v. Winchester Club, 315 U. S.
32 (1942). See also United States v. American
Trucking Ass'n, Inc., 310 U. S. 534 , 310 U. S. 549 (1940); Hassett v. Welch, 303 U.
S. 303 , 303 U. S.
310 -311 (1938).

															[ Footnote 14 ]

															Hearings, supra, note 12 at 181; see also id. at 154, 179-80
(oral testimony), 190-200; 88 Cong.Rec. 61, 693-94 (1942);
S.Rep.No.931, 77th Cong., 2d Sess. 8-9, 19 (1942).

															[ Footnote 15 ]

															Section 5, 40 Stat. 277, Act Aug. 10, 1917. Although § 4 of the
Lever Act, making it unlawful for any person to charge any "unjust
or unreasonable rate or charge" for handling or dealing in
necessaries, was held unconstitutional because of lack of an
ascertainable standard of guilt in United States v. L. Cohen
Grocery Co., 255 U. S. 81 (1921), the validity of the licensing and recordkeeping provisions
was not challenged.

															[ Footnote 16 ]

															Hearings, supra, note 12 at 183; see also id. at 154.

															[ Footnote 17 ] Id. at 184.

															The Report of the Senate Committee, following these hearings,
recognized the key importance of licensing provisions for effective
enforcement of the statute, noting that the "broad licensing power"
which had been given to the Food Administrator under the Lever Act
"was extensively and effectively used." The Report specifically
referred also to the experience of the Fuel Administration, which
at first lacked the power to license, then discovered the need for
the power, and after acquiring it, secured "highly effective"
enforcement results. The Report concluded that,

															". . . where there are many sellers, as in retailing, for
example, it is impossible to determine who is subject to control,
much less enforce price regulations, without licensing. Of these
facts industry is fully aware. Licensing provides a simple and
direct control over violators. . . ."

															S.Rep.No.931, 77th Cong., 2d Sess. 8, 9.

															Speaking critically of the Conference Report, Representative
Gifford, who was a Manager on the part of the House and had refused
to sign the Report and the Statement by the Managers, described
licensing then in practice in Canada as a parallel to the licensing
proposed by the amended Bill. He called the attention of the House
to the Canadian statement of policy:

															"These restrictions are not designed to curtail business
operations in any way. But by placing every person who in any way
handles the commodities named in the order under license, the Board
will have the machinery with which to make speedy checks on
available stocks and to police more effectively any
price-fixing order which may be instituted. "

															88 Cong.Rec. 672(1942). (Rep. Gifford quoted the statement from
"a compiled brief on the licensing methods;" it appears, together
with other data referred to by Rep. Gifford, in the section on
licensing methods in the brief presented during the Senate hearings
by the General Counsel of the OPA, cited supra, note 12 at p. 188.)

															[ Footnote 18 ]

															Hearings, supra, note 12 at 184.

															[ Footnote 19 ]

															In asking unanimous consent for the Committee to file its report
on the next day, Senator Barkley, the Majority Leader and a member
of the Committee, stated on the floor of the Senate on January 2,
1942, that these "hearings [held before the Senate Committee from
December 9-17] have been in print for a week or two." 87 Cong.Rec.
10142. The Senate vote approving the House Bill as amended was not
taken until January 10, more than two weeks after the hearings
appeared in printed form. 88 Cong.Rec. 242. The House agreed to the
Conference Report on January 26. Id. at 689. The Senate
accepted the Conference Report on January 27. Id. at 725.
And the Bill was approved and signed by the President on January
30. Id. at 911.

															It is also of some interest to note the statement, contained in
the Senate Report on the Bill, that a subcommittee which had been
appointed immediately after the conclusion of the December 9-17
hearings " extensively revised and strengthened the House bill
in the light of the hearings and the onslaught of war. "
S.Rep.No.931, 77th Cong., 2d Sess. 6 (Jan. 2, 1942). We assume that
this record of the Senate Committee proceedings merits the same
presumption of regularity as the record of a county criminal court. Cf. Foster v. Illinois, 332 U. S. 134 , 332 U. S. 138 (1947).

															[ Footnote 20 ] See Joint Hearings on S. 2475 and H.R. 7200 (Fair Labor
Standards Act), 75th Cong., 1st Sess. 61 (1937).

															[ Footnote 21 ] Hecht v. Malley, 265 U. S. 144 , 265 U. S. 153 (1924); see also Missouri v. Ross, 299 U. S.
72 , 299 U. S. 75 (1936); Sessions v. Romadka, 145 U. S.
29 , 145 U. S. 42 (1892).

															[ Footnote 22 ] See digest of brief for appellant in Wilson v.
United States, 55 L. Ed. 771, 773 (1911).

															[ Footnote 23 ] Wilson v. United States, 221 U.
S. 361 , 221 U. S. 380 (1911). Holmes, J., in Heike v. United States, 227 U. S. 131 , 227 U. S. 143 (1913), emphasized that the decision in Wilson went "upon
the absence of constitutional privilege, not upon the ground of
statutory immunity in such a case."

															[ Footnote 24 ] Wilson, supra, note
23 at 221 U. S. 381 .
In a later decision involving the alleged ability of corporate
officers to assert constitutional privilege in relation to records
required to be kept under a regulatory statute, Hughes, J.,
speaking for the Court, further spelled out the implications of the Wilson case and of the "required records" doctrine:

															". . . the transactions to which the required reports relate are
corporate transactions, subject to the regulating power of
Congress. And, with regard to the keeping of suitable records of
corporate administration, and the making of reports of corporate
action, where these are ordered by the Commission under the
authority of Congress, the officers of the corporation, by virtue
of the assumption of their duties as such, are bound by the
corporate obligation, and cannot claim a personal privilege in
hostility to the requirement." Baltimore & O. R. Co. v. ICC, 221 U.
S. 612 , 221 U. S.
622 -623 (1911).

															Thus, the significant element in determining the absence of
constitutional privilege was the fact that the records in question
had been validly required to be kept to enable the Commission
"properly to perform its duty to enforce the law." Id. at 221 U. S. 622 .
The fact that the individuals claiming the privilege were corporate
officers was significant only in that the business transactions
subject to the Interstate Commerce Act and the records required to
be kept were corporate. And, as corporate officers, they were bound
by the obligation imposed by the statute upon their corporation to
keep the record. In other words, they were deemed custodians of the
records for the Interstate Commerce Commission, not merely for the
corporation. Had the transactions there regulated, and the records
there required, concerned an unincorporated business, Justice
Hughes' rationale sustaining the absence of constitutional
privilege against self-incrimination would still apply with
undiminished force.

															[ Footnote 25 ]

															Other state supreme court decisions, subsequent to the Wilson case, similarly treat as nonprivileged records
required by statute to be kept by such individuals as licensed fish
dealers, Paladini v. Superior Court, 178 Cal. 369, 372,
374, 173 P. 588, 590 (1918); junk dealers regulated by municipal
ordinance, St. Louis v. Baskowitz, 273 Mo. 543, 201 S.W.
870 (1918), or by statute, State v. Legora, 162 Tenn. 122,
127, 128, 34 S.W.2d 1056, 1057, 1058 (1931); cf. Rosenthal v.
New York, 226 U. S. 260 , 226 U. S.
268 -269 (1912); dealers in raw furs, State v.
Stein, 215 Minn. 308, 9 N.W.2d 763 (1943); and licensed money
lenders, Financial Aid Corp. v. Wallace, 216 Ind. 114, 23
N.E.2d 472, 474, 476 (1939).

															[ Footnote 26 ] Heike, supra, note
23 at 227 U. S.
142 .

															[ Footnote 27 ] See analysis of the earlier provisos in 8 Wigmore,
Evidence, 511 n. 9 (3d ed.1940), and in the brief submitted by the
Government in Heike v. United States, a digest of which
appears at 227 U.S. 137 [argument of counsel -- omitted]. Whether
the stronger wording in the Price Control Act and other recent
enactments be deemed to indicate a "new legislative purpose," as
the majority of the Court in United States v. Monia, 317 U. S. 424 (1943), ruled that it did in connection with a procedural point not
involved in the present case -- or be deemed nothing more than "a
careful rephrasing of a conventional statutory provision," as the
dissenters in Monia, supra, at 317 U. S. 446 ,
believed, the more stringent phrasing of the Price Control Act
proviso must, in either view, be regarded as strengthening the
applicability of the rule of construction of the Heike case.

															The precise holding in Monia was that a witness before
an investigatory body need not claim his privilege as a
prerequisite to earning immunity under a pre-1933 statute which
offered immunity without any reference to the need for making such
a claim. The majority considered the Heike decision
inapplicable to Monia because the relevant terms of the
immunity proviso involved in the latter case were so plain and so
sharply in contrast with the wording of the enactments after 1933,
which (including the Price Control Act) expressly require the
assertion of the claim, that Congress could not have intended the
pre-1933 statute to require a witness to assert his claim. And it
was emphasized that to construe congressional intention otherwise
in those circumstances might well result in entrapment of witnesses
as to testimony concededly privileged. We do not perceive such
distinguishing factors in the case at bar, and accordingly consider
the Heike rationale fully applicable here.

															[ Footnote 28 ] See Judge Delehant's well reasoned discussion, in Bowles v. Misle, 64 F. Supp.
835 , 843, of the "public or semi-public" character of records
kept by a noncorporate entrepreneur subject in his business to such
governmental regulation:

															". . . if the regulating authority may be intercepted altogether
at the door of a regulated business in its quest of information
touching the observance of the law and applicable regulations, its
ministry must be fruitless. And it can be no more effective if,
realistically viewed, the administrator's examination may be made
only at a bargain which absolves the proprietor of the business
from the sanctions, whether civil or criminal, by law provided for
such violations of the regulations, and, therefore, of the law as
examination may disclose. . . ." Compare the dictum in United States v.
Mulligan, 268 F. 893 (N.D.N.U.1920), that records required to
be kept by an unincorporated businessman under the Lever Act were
not privileged, and that information contained therein was
available for use in criminal prosecutions against the recordkeeper
himself. Like the Price Control Act, the Lever Act contained a
compulsory testimony immunity provision. § 25, 40 Stat. 285. The
memorandum filed with the Senate Committee, cited supra, note 12 at 194, specifically
referred to the "well stated" opinion in the Mulligan case.

															[ Footnote 29 ]

															The extreme unlikelihood that such a distinction, not expressly
stated anywhere in the Act, was nevertheless intended by Congress
becomes even more apparent in the light of express provision in the
statute, § 4(a), making it unlawful for any person subject to the
Act, whether in corporate or unincorporated business enterprise, to
fail to comply with the recordkeeping requirements of § 202(b), and
making it unlawful, § 205(b), for any such person to make "any
statement or entry false in any material respect in any document or
report required to be kept or filed" under § 202(b). Even in the
absence of the judicial background highlighted by the rationale of
the Wilson and Heike decisions, it would be
difficult to imagine that records properly required to be kept by
the government, for government use in the administration of a
regulatory statute, with penalties of fines and imprisonment
applicable against any person subject to the statute who fails to
keep those records or who falsifies entries in them, could still be
regarded by Congress or the public as private records concerning
which the recorder may assert a privilege against
self-incrimination.

															[ Footnote 30 ]

															The phrase "any requirements" appears also in the immunity
provision of the Atomic Energy Act of 1946, 42 U.S.C. § 1812(a)(3).
There, as in the Price Control Act, some of the requirements
referred to would, in the absence of the section, be excusable
because of privilege -- e.g., compelled oral testimony --
while other requirements, including the compulsory production of
records which had been kept pursuant to the statute (§ 1810[c]),
would, under the Wilson doctrine, have the same
nonprivileged (and hence non-immunizing) status as the sales record
involved in the present case. Compare also the phraseology
used in such statutes as the War and Defense Contract Acts, 50
U.S.C.App. § 1152(a)(3), (4), and Freight Forwarders Act (1942), 49
U.S.C. § 1017(a), (b), (d).

															[ Footnote 31 ] Compare the paraphrase of § 202(g) contained in the
Committee Reports:

															". . . Although no person is excused from complying with any
requirement of this subsection because of his privilege
against self-incrimination, the immunity provisions of the
Compulsory Testimony Act of February 11, 1893, are made applicable
with respect to any individual who specifically claims such
privilege. "

															S.Rep.No.931, 77th Cong., 2d Sess. 21; H.R.Rep.No.1409, 77th
Cong., 1st Sess. 9. (Italics added here, as elsewhere, unless
otherwise noted.)

															[ Footnote 32 ]

															Section 6 of the Interstate Commerce Act of Feb. 4, 1887, c.
104, 24 Stat. 380, required every common carrier subject to the
provisions of the statute to file with the Commission copies of its
schedules and tariffs of rates, fares, and charges, and of all
contracts and agreements between carriers.

															[ Footnote 33 ]

															It is further suggested that the presence of statutory
provisions for confidential treatment, in certain limited respects,
of information obtained by the Administrator is inconsistent with
the views of this opinion. We find no such inconsistency in the
presence of §§ 4(c) and 202(h), the provisions which specify the
types of confidential safeguards intended.

															"Section 4(c) affords protection to those persons required to
disclose information to the Administrator by making it unlawful for
any officer or employee of the Government, or for any adviser or
consultant to the Administrator in his official capacity, to
disclose or to use for his personal benefit, any information
obtained under the bill. Further provision for confidential
treatment of such information is found in section 202(b) [changed
in Conference to § 202(h)]. . . . Section 202(b) gives further
protection to persons furnishing information to the Administrator
under the bill by directing the Administrator upon the request of
the party furnishing such information, or if he deems such
information confidential, not to disclose such information
unless he deems that the public interest requires such
disclosure. "

															S.Rep.No.931, 77th Cong., 2d Sess. 20, 21.

															This is substantially the same sort of confidential treatment
provided for by the Hepburn Act of 1906, 34 Stat. 594, amending the
Interstate Commerce Act:

															"Any examiner who divulges any fact or information which may
come to his knowledge during the course of such examination, except insofar as he may be directed by the commission or by a
court or judge thereof, shall be subject, upon conviction in
any court of the United States of competent jurisdiction, to a fine
of not more than $5,000 or imprisonment for a term not exceeding
two years, or both."

															49 U.S.C. § 20(8). Numerous other statutes have incorporated
almost identically worded provisions. See e.g., Motor
Carrier Act of 1935, 49 U.S.C. § 322(d).

															In statutes such as these, where Congress validly distinguishes
required records from private papers, with respect to the
availability of the required documents as evidence in criminal or
other proceedings to enforce the statute for whose effectuation
they are kept, nothing in logic nor historical practice requires
Congress at the same time to treat the records as public in the
sense that they be open at all times to scrutiny by the merely
curious. See Coleman v. United States, 153 F.2d 400,
402-404 (C.C.A. 1946). Congress expressly foreclosed such a result
in the Emergency Price Control Act, and this opinion neither
requires nor permits it.

															[ Footnote 34 ] Heike, supra, note
23 at 227 U. S.
141 .

															[ Footnote 35 ] Id. at 227 U. S.
141 -142. It would appear that the persuasive brief for
the Government in this case, prepared with the assistance of
eminent counsel, called forth a Holmesian echo.

															[ Footnote 36 ] See Heike, supra, note 23 at 227 U. S. 142 ; Brown v. Walker, 161 U. S. 591 , 161 U. S.
594 -595 (1896); Hale v. Henkel, 201 U. S.
43 , 201 U. S. 67 (1906). See also the statement made in the House by
Representative Wise, of the Committee on Interstate and Foreign
Commerce, in presenting the bill which became the basis of the 1893
Compulsory Testimony Act:

															"The whole scope and effect of the act is simply to meet the
decision rendered recently by the Supreme Court in the case known
as 'the Councilman [ sic ] case.'"

															24 Cong.Rec. 503 (1893).

															[ Footnote 37 ]

															88 Cong.Rec. 700 (1942).

															[ Footnote 38 ] Endicott Johnson Corp. v. Perkins, 317 U.
S. 501 , 317 U. S. 509 (1943).

															[ Footnote 39 ] Heike, supra, note
23 at 227 U. S.
142 .

															[ Footnote 40 ] United States v. American Trucking Ass'ns, Inc., 310 U. S. 534 , 310 U. S. 543 (1940); see also Missouri, Pacific R. Co. v. Boone, 270 U. S. 466 , 270 U. S. 472 (1926).

															"A restrictive interpretation should not be given a statute
merely because Congress has chosen to depart from custom or because
giving effect to the express language employed by Congress might
require a court to face a constitutional question." United States v. Sullivan, 332 U.
S. 689 , 332 U. S. 693 (1948).

															[ Footnote 41 ] Cf. Yakus v. United States, 321 U.
S. 414 , 321 U. S. 422 (1944).

															[ Footnote 42 ] Davis v. United States, 328 U.
S. 582 , 328 U. S.
589 -590 (1946). See also United States v.
Darby, 312 U. S. 100 , 312 U. S. 125 (1941) ("Since . . . Congress may require production for interstate
commerce to conform to those conditions [wages and hours], it
may require the employer, as a means of enforcing the valid law, to
keep a record showing whether he has in fact complied with it. The requirement for records even of the intrastate transaction is
an appropriate means to the legitimate end. . . ."); Arrow
Distilleries v. Alexander, 109 F.2d 397, 404, 405 (1940); Di Santo v. United States, 93 F.2d 948 (1937). Cf.
Rodgers v. United States, 138 F.2d 992, 995, 996 (1943).

															In Boyd v. United States, 116 U.
S. 616 (1886), the Court held unconstitutional, as
repugnant to the Fourth and Fifth Amendments, an 1874 revenue
statute which required the defendant or claimant, on motion of the
Government attorney, to produce in court his private books,
invoices and papers, or else the allegations of the Government were
to be taken as confessed. The document to which the statute had
been applied in that case was an invoice, which the Government, as
well as the defendant, treated throughout the trial and appellate
proceedings as a private business record. The Government defended
the constitutionality of the statute thus applied on the ground
that the action was not against the claimants, but was merely a
civil action in rem for the forfeiture of merchandise, in
which action the claimants had voluntarily intervened. It argued
that, in a forfeiture action, private books and papers produced
under compulsion have no higher sanctity than other property, since
the provision in the Fifth Amendment that no person "shall be
compelled in any criminal case to be a witness against himself"
applies only to criminal proceedings in personam. In rejecting the Government's contention, the opinion of the
majority of the Court proceeded mainly upon a complex
interpretation of the Fourth Amendment, taken as intertwined in its
purpose and historical origins with the Fifth Amendment. Under that
view,

															"a compulsory production of the private books and papers of the
owner of goods sought to be forfeited in such a suit
( i.e., a suit for a penalty or forfeiture) is compelling
him to be a witness against himself, within the meaning of the
Fifth Amendment to the Constitution, and is the equivalent of a
search and seizure -- and an unreasonable search and seizure --
within the meaning of the fourth amendment." Id. at 116 U. S.
634 -635; see also id. at 116 U. S. 621 et seq. In other words, the majority opinion construed the
prohibition of the Fourth Amendment as applying in the foregoing
circumstances "to a returnable writ of seizure describing specific
documents in the possession of a specific person." 8 Wigmore,
Evidence 368 (3d ed.1940); see Hale v. Henkel, 201 U. S. 43 , 201 U. S. 71 -72
(1906).

															Holding this view of the Fourth Amendment, the majority of the
Court nevertheless carefully distinguished the "unreasonable search
and seizure" effected by the statute before it from the "search and
seizure" which Congress had provided for in revenue acts that
required manufacturers to keep certain records, subject to
inspection ( see, e.g., Act of July 20, 1868, c. 186, §§
19, 45, 15 Stat. 133, 143, regulating distillers and
rectifiers):

															". . . the supervision authorized to be exercised by officers of
the revenue over the manufacture or custody of excisable articles, and the entries thereof in books required by law to be kept for
their inspection, are necessarily excepted out of the category of
unreasonable searches and seizures. . . . But, when examined with
care, it is manifest that there is a total unlikeness of these
official acts and proceedings to that which is now under
consideration. . . ." Id. at 116 U. S.
623 -624.

															[ Footnote 43 ] Davis, supra, note
42 at | note 42 at S.
602|>602.

															[ Footnote 44 ] Ibid. [ Footnote 45 ] See dissenting opinion in Davis, supra, note 42 at 328 U. S. 614 note 9. See also Amato v. Porter, 157 F.2d 719 (1946); Coleman v. United States, 153 F.2d 400 (1946).

															[ Footnote 46 ] See also the rationale set forth in 8 Wigmore, Evidence
§ 2259c (3d ed.1940), a section which was cited with approval by
the opinion of the Court in Davis, supra, note 42 at 328 U. S.
590 :

															"The State requires the books to be kept, but it does not
require the officer to commit the crime. If, in the course of
committing the crime, he makes entries, the criminality of the
entries exists by his own choice and election, not by compulsion of
law. The State announced its requirement to keep the books long
before there was any crime; so that the entry was made by reason of
a command or compulsion which was directed to the class of entries
in general, and not to this specific act. The duty or compulsion to
disclose the books existed generically, and prior to the specific
act; hence the compulsion is not directed to the criminal act, but
is independent of it, and cannot be attributed to it. . . . The
same reasoning applies to records required by law to be
kept by a citizen not being a public official, e.g., a druggist's report of liquor sales, or a
pawnbroker's record of pledges. The only difference here is that
the duty arises not from the person's general official status, but
from the specific statute limited to a particular class of acts.
The duty, or compulsion, is directed, as before, to the generic
class of acts, not to the criminal act, and is anterior to and
independent of the crime, the crime being due to the party's own
election, made subsequent to the origin of the duty."

															(Italics as in the original.)

															MR. JUSTICE FRANKFURTER, dissenting.

															The Court this day decides that when Congress prescribes for a
limited Governmental purpose, enforceable by appropriate sanctions,
the form in which some records are to be kept, not by corporations
but by private individuals, in what in everyday language is a
private and not a Governmental business, Congress thereby takes
such records out of the protection of the Constitution against
self-incrimination and search and seizure. Decision of
constitutional issues is at times unavoidable. But, in this case,
the Court so decides when it is not necessary. The Court makes a
drastic break with the past in disregard of the settled principle
of constitutional adjudication not to pass on a constitutional
issue -- and here a grave one involving basic civil liberties -- if
a construction that does no violence to the English language
permits its avoidance. This statute clearly permits it. [ Footnote 2/1 ] Instead, the Court goes on
the assumption that an immunity statute must be equated with the
privilege, although only recently the Court attributed to Congress
a gratuitous grant of immunity where concededly the Constitution
did not require it, under circumstances far less persuasive than
the statutory language and the policy underlying it. See United
States v. Monia, 317 U. S. 424 . Page 335 U. S. 37 Instead of respecting "serious doubts of constitutionality" by
giving what is at least an allowable construction to the Price
Control Act which legitimately avoids these doubts, the Court goes
out of its way to make a far-reaching pronouncement on a provision
of the Bill of Rights. In an almost cursory fashion, the Court
needlessly decides that all records which Congress may require
individuals to keep in the conduct of their affairs, because they
fall within some regulatory power of Government, become "public
records" and thereby, ipso facto, fall outside the
protection of the Fifth Amendment that no person "shall be
compelled in any criminal case to be a witness against
himself."

															In reaching out for a constitutional adjudication, especially
one of such moment, when a statutory solution avoiding it lay ready
at hand, the Court has disregarded its constantly professed
principle for the proper approach toward congressional
legislation.

															"When the validity of an act of the Congress is drawn in
question, and even if a serious doubt of constitutionality is
raised, it is a cardinal principle that this Court will first
ascertain whether a construction of the statute is fairly possible
by which the question may be avoided." Crowell v. Benson, 285 U. S. 22 , 285 U. S. 62 ,
quoted by Mr. Justice Brandeis with supporting citations in Ashwander v. Tennessee Valley Authority, 297 U.
S. 288 , 297 U. S. 348 ,
note 8. And see, generally, for duty to avoid
constitutional adjudication, Rescue Army v. Municipal
Court, 331 U. S. 549 , 331 U. S. 568 et seq. Departure from a basic canon of constitutional adjudication is
singularly uncalled for in a case such as this, where the statute
not only permits a construction avoiding constitutional
considerations, but, on fair reading, requires it.

															In conferring powers of investigation upon the Administrator,
Congress designed to secure the promptest disclosure Page 335 U. S. 38 of the books and records of the millions of private enterprises
subjected to the regulations of the Office of Price Administration.
The would contradict that vital aim to attribute to Congress the
conflicting purpose of hampering the free flow of knowledge
contained in businessmen's books by inviting controversies
regarding still undetermined claims of privilege under the Fifth
Amendment, in the absence of an expression of such propose made
much more manifest than the broad language of § 202(g) which
conferred immunity for the very purpose of avoiding such
controversies.

															It is a poor answer to say that if the statute were eventually
found to confer immunity only to the extent required for supplying
an equivalent for the constitutional privilege, all records would
turn out to be unprivileged or would furnish immunity, and in
either case refute any excuse for withholding them. Businessmen are
not guided by such abstractions. Obedience is not freely given to
uncertain laws when they involve such sensitive matters as opening
the books of business. And so, businessmen would have had a strong
incentive to hold back their records, forcing the Administrator to
compel production by judicial process. Apart from the use of
opportunities for obstructive tactics that can hardly be
circumvented when new legislation is tested, delays inevitable to
litigation would dam up the flow of needed information. Congress
sought to produce information, not litigation. See United
States v. Monia, supra, at 317 U. S.
428 .

															In the Monia case, the Court considered that the
statute, "if interpreted as the Government now desires, may well be
a trap for the witness." Id. at 317 U. S. 430 .
We need not speculate here as to potential entrapment. The record
discloses that the petitioner asked, through his attorney, whether
he was "being granted immunity as to any and all matters for
information obtained as the result of the investigation and
examination of these records." On behalf Page 335 U. S. 39 of the Price Administrator, the reply was

															"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 pursuant to MPRs (Maximum Price
Regulations) 271 and 426."

															Petitioner, himself, thereupon specifically claimed immunity
under the statute as well as under the Constitution, and stated
that, under "these conditions," he produced the books and records
that the subpoena sought. It seems clear that disclosure was here
made, records were produced, on the petitioner's justifiable belief
-- based upon the advice of counsel and acquiesced in by the
presiding official -- that he thereby secured statutory immunity,
and not constitutional litigation.

															There is nothing to indicate that, in 1942, Congress legislated
with a view to litigating the scope of the limitation of the Fifth
Amendment upon its powers. To ascertain what Congress meant by §
202(g), we would do well to begin by carefully attending to what
Congress said:

															"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."

															56 Stat. 23, 30, 50 U.S.C.App. § 922(g).

															The text must be put into its context not merely because one
provision of a statute should normally be read in relation to its
fellows, but particularly so here because Congress explicitly
linked subsection (g) of § 202 to "any requirements under this
section." Effective price control depended on unimpeded access to
relevant information. To that end, § 202 authorized the
Administrator to impose the "requirements" of the section, and
those from whom Page 335 U. S. 40 they were exacted were under duty of compliance by subsection
(e), while subsection (g) barred any excuse from compliance by a
claim of privilege against self-crimination by the assurance of
immunity from prosecution. [ Footnote
2/2 ] Page 335 U. S. 41 Subsections (a), (b), (c) and (e) impose these four
requirements: persons engaged in the vast range of business subject
to the Act may be required to (1) make and keep records, (2) make
reports and (3) permit the inspection and copying of records and
other documents; such persons as well as others may be required to
(4) "appear and testify or to appear and produce documents, or
both, at any designated place." [ Footnote 2/3 ] An unconstrained reading of subsection (g)
insured prompt compliance with all these requirements by removing
any excuse based on the privilege against self-crimination. Page 335 U. S. 42 Here, the Administrator required the petitioner to "keep and
make available for examination by the Office of Price
Administration . . . records of the same kind as he has customarily
kept. . . ." § 14(b), MPR 426, 8 F.R. 9546. The Government contends
that, because the records of petitioner's own business, those that
he "customarily kept," were required to be so kept by the
Administrator, he was compelled to disclose their contents even
though they may have incriminated him, and that he was afforded no
immunity under subsection (g) because he was not disclosing what
were really his records. Surely this is to devitalize the phrase
"any requirements under this section" if not to render it
meaningless.

															The Court supports this devitalization with the "short answer"
that the immunity provided does cover compliance with any of these
requirements as to which a person would have been excused from
compliance because of his constitutional privilege. The short reply
is that, bearing in mind the Court's conclusions as to the scope of
the constitutional privilege, only the fourth requirement appears
to be thus covered. I do not wish to lay too much stress on the
Court's singular interpretation of the plural "requirements."
Plainly, the Court construes § 202(g) as according immunity only to
oral testimony under oath and to the production of any documents
which the Administrator did not have the foresight to require to be
kept. [ Footnote 2/4 ]

															The Court thus construes the words "complying with any
requirements under this section" to read "appearing and testifying
or producing documents other than those required to be kept
pursuant to this section." Construction, Page 335 U. S. 43 no doubt, is not a mechanical process, and, even when most
scrupulously pursued by judges, may not wholly escape some
retrospective infusion, so that the line between interpretation and
substitution is sometimes thin. But there is a difference between
reading what is and rewriting it. The Court here does not adhere to
the text, but deletes and reshapes it. Such literary freewheeling
is hardly justified by the assumption that Congress would have so
expressed it if it had given the matter attentive consideration.
[ Footnote 2/5 ] In the Monia case, the Court, having concluded that a similar
question was present, had no difficulty in answering: "It is not
for us to add to the legislation what Congress pretermitted." 317
U.S. at 317 U. S.
430 .

															Both logic and authority, apart from due regard for our limited
function, demonstrate the wisdom of respecting the text. The reach
of the immunity given by § 202(g) is spelled out in the
incorporated terms of the Compulsory Testimony Act of 1893. These
provide that where, as here, documentary evidence is exacted which
may tend to incriminate, he who produces it 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 testify, or produce evidence, documentary or otherwise. . .
."

															27 Stat. 443, 49 U.S.C. § 46. There is, of course, nothing in
this provision to support the fine-spun exegesis which the Court
puts upon § 202(g). The Government admits as much by acknowledging
that "the literal language of the Compulsory Testimony Act possibly
may be so read" as to support the present claim of immunity. But it
urges that nothing Page 335 U. S. 44 in the "language or legislative history" of § 202(g) requires a
broader immunity than an adjudication of the scope of the
constitutional privilege would exact.

															The language yields no support for the Government's
sophisticated reading adopted by the Court. Nor is there anything
in the legislative history to transmute the clear import of § 202
into esoteric significance. So far as it bears upon our problem,
the legislative history of the Act merely shows that § 202, in its
entirety, was included for the purpose of "obtaining information."
[ Footnote 2/6 ] Nothing in that
history throws any light upon the scope of the immunity afforded by
subsection (g). [ Footnote 2/7 ] What
is there in this silence of Congress that speaks so loudly to the
Court? What are the "inescapable implications of the legislative
history" that compelled its extraordinary reading of this statute?
Surely, the fact that the Administrator's authority to require the
keeping of records and the making of reports was stricken from the
bill on its original passage through the House but was
eventually Page 335 U. S. 45 reinserted, reinserted, merely indicates that Congress finally
concluded that obtaining information was necessary for effective
price regulation. [ Footnote
2/8 ]

															But the Court reads into § 202(g) the meaning that "they" put
upon the recordkeeping provisions that Congress thus reinserted
into the bill. "They," the "general Counsel for the OPA," appeared
and testified orally at the Senate Hearings [ Footnote 2/9 ] and, in urging restoration of the
licensing (§ 205(f)) and recordkeeping provisions, secured
permission to file various briefs and documents with the Committee.
[ Footnote 2/10 ] While there is
nothing in the General Counsel's oral testimony that sheds light
upon our problem, Page 335 U. S. 46 it does appear from one of the exhibits filed by him that the
Court has correctly determined the far-reaching construction that
he had given to provisions which the House had rejected as
"redundant." [ Footnote 2/11 ] But
our task is to determine, as best we can, what Congress meant --
not what counsel sponsoring legislation, however disinterestedly,
hoped Congress would mean. If counsel's views had been orally
expressed to the Committee, [ Footnote
2/12 ] the Committee might have given some indication of its
views. But even if, upon such disclosure of counsel's views, the
Committee had remained silent, this would hardly have furnished
sufficient evidence to transmute the language that Congress
actually employed to express its meaning into some other
meaning.

															To attribute to Congress familiarity with, let alone acceptance
of, a construction solely by reason of the fact that our research
reveals its presence among the 60,000-word memoranda which the
Chairman of the Senate Committee permitted the General Counsel of
the OPA to file is surely to defy the actualities of the
legislative process. Is there the slenderest ground for assuming
that members of the Committee read counsel's submission now relied
upon by the Court? There is not a reference to the contentions of
the OPA wholly apart from that brief, in any report of a committee
of either House or in any utterance on the floor of either House.
[ Footnote 2/13 ] The fact Page 335 U. S. 47 of the matter is that the House had passed the measure before
the brief, in type smaller than that of the footnotes in this
opinion, appeared in a volume of hearings comprising Page 335 U. S. 48 560 pages (part of the three volumes of House and Senate
Hearings containing 2,865 pages). The Government, in submitting to
us the legislative history of the immunity provision with a view to
sustaining its claims, did not pretend that the Congress was either
aware of the brief or accepted the construction it proffered. The
suggestion that members of a congressional committee have read, and
presumptively agreed with, the views found in a memorandum allowed
to be filed by a witness and printed in appendix form in the
hearings on a bill, let alone that both Houses in voting for a
measure adopted such views as the gloss upon the language of the
Act which it would not otherwise bear, can only be made in a
Pickwickian sense. It is hard to believe that even the most
conscientious members of the Congress would care to be charged with
underwriting views merely because they were expressed in a
memorandum filed as was the OPA brief, on which so much reliance is
placed in the Court's opinion. If the language of a statute is to
be subjected to the esoteric interpretive process that the
suggested use of the OPA brief implies, since it is the common
practice to allow memoranda to be submitted to a committee of
Congress by interests, public and private, often high-minded enough
but with their own axes to grind, great encouragement will be given
to the temptations of administrative officials and others to
provide self-serving "proof" of congressional confirmation for
their private views through incorporation of such materials.
Hitherto unsuspected opportunities for assuring desired Page 335 U. S. 49 glosses upon innocent-looking legislation would thus be
afforded.

															We agree with the Government that Congress gave the
Administrator broad powers for obtaining information as an aid to
the administration and enforcement [ Footnote 2/14 ] of the Act, and that

															"The immunity provision of Section 202(g) was inserted to insure
a full exercise of these powers unhampered by the assertion of the
privilege against self-incrimination."

															Certainly. But how does it follow that Congress thereby intended sub silentio to effectuate this broad purpose by confining
the immunity accorded within the undefined controversial scope of
the Fifth Amendment? One would suppose that Congress secured its
object, as this Court held in the Monia case, by giving
immunity and so taking away contentions based on the constitutional
privilege.

															Plainly, it would have sufficed to dispose of the present
controversy by holding that Congress granted immunity by § 202(g)
to persons who produced their own records, as were the records in
this case, and not in their possession as custodians of others,
even though required to be kept by § 202. To adapt the language of
Mr. Justice Holmes, words have been strained by the Court more than
they Page 335 U. S. 50 should be strained in order to reach a doubtful constitutional
question. See Blodgett v. Holden, 275 U.
S. 142 , 275 U. S.
148 .

															And so we come to the Court's facile treatment of the grave
constitutional question brought into issue by its disposition of
the statutory question. In the interest of clarity, it is
appropriate to note that the basic constitutional question concerns
the scope oft he Fifth Amendment, not the validity of the Price
Control Act. The Court has construed the immunity afforded by §
202(g) of the Act as coextensive with the scope of the
constitutional privilege against self-incrimination. Thus
construed, the subsection is, of course, valid, since, by
hypothesis, it affords a protection as broad as the Fifth
Amendment. Counselman v. Hitchcock, 142 U.
S. 547 ; Brown v. Walker, 161 U.
S. 591 . The vice of this construction -- and the
importance of the point warrants its reiteration -- is precisely
that it necessitates interpretation of the Constitution instead of
avoiding it. [ Footnote 2/15 ] And,
if the precedents mean anything, this course will be followed in
every future case involving a question of statutory immunity.

															The Court hardly finds a problem in disposing of an issue
far-reaching in its implications, involving as they do a drastic
change in the relations between the individual and the Government
as hitherto conceived. The Court treats the problem as though it
were almost self-evident that, when records are required to be kept
for some needs of Government, or to be kept in a particular form,
they are legally considered governmental records, and may be
demanded as instruments of self-crimination.

															Ready-made catch-phrases may conceal, but do not solve, serious
constitutional problems. "Too broadly generalized Page 335 U. S. 51 conceptions are a constant source of fallacy." Holmes, J., in Lorenzo v. Wirth, 170 Mass. 596, 600, 49 N.E. 1010, 1011.
Here, the fallacy can be traced to the rephrasing of our problem
into terms "to which, as lawyers, the judges have become
accustomed," ibid.; then, by treating the question as
though it were the rephrased issue, the easy answer appears
axiomatic and, because familiar, authoritative. Subtle
question-begging is nevertheless question-begging. Thus: records
required to be kept by law are public records; public records are
nonprivileged; required records are nonprivileged.

															If records merely because required to be kept by law ipso
facto become public records, we are indeed living in glass
houses. Virtually every major public law enactment -- to say
nothing of State and local legislation -- has recordkeeping
provisions. In addition to recordkeeping requirements is the
network of provisions for filing reports. Exhaustive efforts would
be needed to track down all the statutory authority, let alone the
administrative regulations, for recordkeeping and reporting
requirements. Unquestionably, they are enormous in volume.

															The Congress began its history with such legislation. Chapter I
of the Laws of the First Session of the First Congress -- "An Act
to regulate the Time and Manner of administering certain Oaths" --
contained a provision requiring the maintenance of records by
persons administering oaths to State officials. 1 Stat. 23, 24.
Chapter V -- "An Act to regulate the Collection of the Duties
imposed by law on the tonnage of ships or vessels, and on goods,
wares and merchandise imported into the United States" -- contained
a provision requiring an importer to produce the original invoice
and to make a return concerning the consigned goods with the
collector of the port of arrival. 1 Stat. 29, 39-40.

															Every Congress since 1789 has added recordkeeping and reporting
requirements. Indeed, it was the plethora Page 335 U. S. 52 of such provisions that led President Roosevelt to establish the
Central Statistical Board in 1933 and induced the enactment, in
1942, of the Federal Reports Act, 56 Stat. 1078,. See
generally Report of the Central Statistical Board, H.Doc. No.
27, 76th Cong., 1st Sess.; Centralization and Coordination of
Federal Statistics -- Report to the Committee on Appropriations of
the House of Representatives, December 4, 1945, 91 Cong. Rec.
A5419. On April 25, 1939, the Central Statistical Board reported
that,

															"Since the end of 1933, the Board has reviewed in advance of
dissemination more than 4,600 questionnaires and related forms and
plans proposed for use by Federal agencies. The records for the
past 2 years show that the Board has received forms from 52 Federal
agencies and a number of temporary interdepartmental
committees." See Hearings before the House Committee on Expenditure
in the Executive Departments on H.R. 5917, 76th Cong., 1st Sess.,
at p. 32. The Board, on the basis of a comprehensive survey of the
financial and other reports and returns made to 88 Federal agencies
by private individuals, farms, and business concerns during the
fiscal year ending June 30, 1938, informed Congress as follows:

															"Counting both the administrative and the nonadministrative
reports and returns, the Board's inquiry revealed that some
49,000,000 of the total during the year were collected in
accordance with statutory provisions specifically authorizing or
directing the collection of reports of the types called for.
Approximately 55,000,000 returns were collected by agencies in
connection with their performance of functions which were
specifically authorized by statutes, although the statutes did not
specify the reports. In such cases, the information sought was
obviously necessary in carrying out required functions. Nearly
27,000,000 returns were collected by Page 335 U. S. 53 Federal agencies on report forms for each of which the legal
authority was too general or too indefinite to permit its clear
definition. The remaining 5,000,000 returns were made under a
variety of types of legal authorities including authorizations
implied in appropriations made specifically to support the
collection of the reports."

															"Somewhat less than half of the returns made to Federal agencies
on all forms . . . were mandatory by law, in the sense that a
penalty is prescribed in case of failure of the respondent to file
a required report. Some of these mandatory returns are very
elaborate, and, as a consequence, over 60 percent of the total
number of answers on report forms, other than applications, were in
accordance with mandatory requirements."

															(H. Doc. No. 27, supra, at 11-12.)

															I do not intend by the above exposition to cast any doubt upon
the constitutionality of the recordkeeping or reporting provisions
of the Emergency Price Control Act or, in general, upon the vast
number of similar statutory requirements. Such provisions serve
important and often indispensable purposes. But today's decision
can hardly fail to hamper those who make and those who execute the
laws in securing the information and data necessary for the most
effective and intelligent conduct of Government.

															The underlying assumption of the Court's opinion is that all
records which Congress in the exercise of its constitutional powers
may require individuals to keep in the conduct of their affairs,
because those affairs also have aspects of public interest, become
"public" records in the sense that they fall outside the
constitutional protection of the Fifth Amendment. The validity of
such a doctrine lies in the scope of its implications. The claim
touches records that may be required to be kept by federal Page 335 U. S. 54 regulatory laws, revenue measures, labor and census legislation
in the conduct of business which the understanding and feeling of
our people still treat as private enterprise, even though its
relations to the public may call for governmental regulation,
including the duty to keep designated records.

															If the records in controversy here are, in fact, public in the
sense of publicly owned or governmental records, their
nonprivileged status follows. See Davis v. United States, 328 U. S. 582 , 328 U. S. 594 , 328 U. S. 602 (dissenting opinion). No one has a private right to keep for his
own use the contents of such records. But the notion that, whenever
Congress requires an individual to keep in a particular form his
own books dealing with his own affairs, his records cease to be his
when he is accused of crime is indeed startling.

															A public record is a public record. If the documents in
controversy are "public records," and, as such, nonprivileged in a
prosecution under the Price Control Act, why are they not similarly
public and nonprivileged in any sort of legal action? There is
nothing in either the Act or the Court's construction of it to
qualify their "public" nature. Is there any maintainable reason why
the Fifth Amendment should be a barrier to their utilization in a
prosecution under any other law if it is no barrier here? These
records were, as a matter of fact, required to be kept (and hence
"public") quite apart from this Act. See Int.Rev.Code, §
54(a) and Treas. Reg. 111, § 29.54-1. If an examination of the
records of an individual engaged in the processing and sale of
essential commodities should disclose nonessential production, for
example, why cannot the records be utilized in prosecutions for
violations of the priorities or selective service legislation? Cf. Harris v. United States, 331 U.
S. 145 ; but cf. Trupiano v. United States, 334 U. S. 699 .

															Moreover, the Government should be able to enter a man's home to
examine or seize such public records, with Page 335 U. S. 55 or without a search warrant, at any time. If an individual
should keep such records in his home, as millions do, instead of in
his place of business, why is not his home for some purposes and in
the same technical sense, a "public" library? Compare Davis v.
United States, 328 U. S. 582 , and Harris v. United States, supra, with the "well stated"
opinion in United States v. Mulligan, 268 F. 893; but
see Trupiano v. United States, supra. This is not "a parade of
horribles." If a man's records are "public" so as to deprive him of
his privilege against self-crimination, their publicness inheres in
them for many other situations.

															Indeed, if these records are public, I can see no reason why the
public should not have the same right that the Government has to
peruse, if not to use, them. For public records are

															"of a public character, kept for public purposes, and so
immediately before the eyes of the community that inaccuracies, if
they should exist, could hardly escape exposure." Evanston v. Gunn, 99 U. S. 660 , 99 U. S. 666 .
It would seem to follow, therefore, that these public records of
persons engaged in what to the common understanding is deemed
private enterprise should be generally available for examination,
and not barred by the plea that the enterprise would thereby cease
to be private.

															Congress was guilty, perhaps, of no more than curious
inconsistency when it provided in § 202(h) of the Act for the
confidential treatment of these "public" records. [ Footnote 2/16 ] But the seeming inconsistency
generally applies to Page 335 U. S. 56 information obtained by the Government pursuant to recordkeeping
and reporting requirements. See H.Doc. No. 27, supra, at pp. 26-28; 56 Stat. 1078, 1079; H.R.Rep. No.
1651, 77th Cong., 2d Sess., at pp. 4-5; ("We [the Bureau of the
Census] do not even supply the Department of Justice or anybody
else with that information") Hearings before the House Committee on
Expenditures in the Executive Departments on H.R. 7590, 74th Cong.,
1st Sess., at p. 63.

															The fact of the matter, then, is that records required to be
kept by law are not necessarily public in any except a wordplaying
sense. To determine whether such records are truly public records, i.e., are denuded of their essentially private
significances, we have to take into account their custody, their
subject matter, and the use sought to be made of them.

															It is the part of wisdom, particularly for judges, not to be
victimized by words. Records may be public records regardless of
whether "a statute requires them to be kept" if "they are kept in
the discharge of a public duty" either by a public officer or by
persons acting under his direction. Evanston v. Gunn,
supra. Chapter I of the first statute passed by Congress, supra, is an example of an act requiring a public record
to be kept.

															Records do not become public records, however, merely because
they are required to be kept by law. Private records under such
circumstances continue to be private records. Chapter V of the Acts
of the First Congress, supra, is an example of such a
private record required to be kept by law.

															Is there, then, any foundation for the Court's assumption that all records required to be kept by law are public and not
privileged? Reliance is placed on language in Wilson v. United
States, 221 U. S. 361 . The
holding in that case has no real bearing on our problem. Wilson,
the president of a corporation, in answer to a subpoena Page 335 U. S. 57 to produce, refused to surrender the corporation's books and
records on the ground that their contents would tend to incriminate
him. He appealed to this Court from a judgment committing him for
contempt. The case was disposed of on the ground that the books
were the corporation's, and not "his private or personal books,"
that the "physical custody of incriminating documents does not of
itself protect the custodian against their compulsory production,"
and that, therefore, "the custodian has no privilege to refuse
production although their contents tend to criminate him." 221 U.S.
at 221 U. S. 378 , 221 U. S. 380 , 221 U. S. 382 .
The Court concluded as follows:

															"The only question was whether, as against the corporation, the
books were lawfully required in the administration of justice. When
the appellant became president of the corporation, and as such held
and used its books for the transaction of its business committed to
his charge, he was at all times subject to its direction, and the
books continuously remained under its control. If another took his
place, his custody would yield. He could assert no personal right
to retain the corporate books against any demand of government
which the corporation was bound to recognize."

															"We have not overlooked the early English decisions to which our
attention has been called . . . , but these cannot be deemed
controlling. The corporate duty, and the relation of the appellant
as the officer of the corporation to its discharge, are to be
determined by our laws. Nothing more is demanded than that the
appellant should perform the obligations pertaining to his custody,
and should produce the books which he holds in his official
capacity in accordance with the requirements of the subpoena. None
of his personal papers is subject to inspection under the writ, and
his action in refusing to permit the Page 335 U. S. 58 examination of the corporate books demanded fully warranted his
commitment for contempt."

															221 U.S. at 221 U. S.
385 -386.

															The Wilson case was correctly decided. The Court's
holding boiled down to the proposition that "what's not yours is
not yours." It gives no sanction for the bold proposition that
Congress can legislate private papers in the hands of their owner,
and not in the hands of a custodian, out of the protection afforded
by the Fifth Amendment. Even if there were language in the Wilson opinion in that direction, an observation taken
from its context would seem to be scant justification for
resolving, and needlessly, "a very grave question of constitutional
law, involving the personal security, and privileges and immunities
of the citizen." Boyd v. United States, 116 U.
S. 616 , 116 U. S.
618 .

															The conclusion reached today that all records required to be
kept by law are public records cannot lean on the Wilson opinion. This is the language relied upon by the Court:

															"The principal [that a custodian has no privilege as to
the documents in his custody ] applies not only to public
documents in public offices, but also to records required by law to
be kept in order that there may be suitable information of
transactions which are the appropriate subjects of governmental
regulation, and the enforcement of restrictions validly
established. There, the privilege which exists as to private papers
cannot be maintained."

															221 U.S. at 221 U. S.
380 .

															But Mr. Justice Hughes, the writer of the Wilson opinion, went on to note that "[t]here are abundant illustrations
in the decisions" of this principle that a custodian has no
privilege as to the documents in his custody, just as no one has a
privilege as to public or official records because they are not his
private papers. He resorted Page 335 U. S. 59 to these illustrations concerning custodians because the
dissenting opinion of Mr. Justice McKenna, while accepting the
premise that public records were not privileged, quarreled with the
Court's holding as to the absence of a custodian's privilege
concerning nonpublic records, as follows:

															"As the privilege is a guaranty of personal liberty, it should
not be qualified by construction, and a distinction based on the
ownership of the books demanded as evidence is immaterial. Such
distinction has not been regarded except in the case of public
records, as will be exhibited by a review of the authorities."

															221 U.S. at 221 U. S.
388 .

															The illustrations utilized by Mr. Justice Hughes to meet this
challenge raised by the dissent stand for the proposition that (a)
a custodian has no privilege, and (b) public documents and records
are nonprivileged, but not at all on any notion that private
records required to be kept by law are "public" records. Before
analyzing the eleven precedents or illustrations thus employed, it
is worthy of note that the illustrations were derived from the
Government's brief. It is significant that that brief, by Solicitor
General Frederick W. Lehmann, well known for his learning,
contained no reference to the "required records" doctrine. On the
contrary, the Government cited these cases to support its argument
that "[t]he immunity granted by the Constitution is purely
personal." [ Footnote 2/17 ]

															These are the "illustrations in the decisions":

															(1) Bradshaw v. Murphy, 7 C. & P. 612, where

															"it was held that a vestry clerk who was called as a witness
could not, on the ground that it might incriminate himself, object
to the production of the vestry books kept under the statute, 58
Geo. III, chap. 69, § 2."

															(211 U.S. at 211 U. S.
380 .) Page 335 U. S. 60 Comment. -- This is an instance where records were
required to be kept by a public officer (for such, in England, was
a parish vestry clerk). Clearly, the clerk had no privilege as to
such records, since (1) they were not his; he was merely their
custodian, and (2) he was a public officer.

															(2) State v. Farnum, 73 S.C. 165, where it was held
that the dispenser of the State Dispensary had to disclose to a
legislative committee the official books of that State
institution. Comment. -- Under South Carolina law, the dispenser was
an officer of the State; the books were true public records; he was
their custodian.

															(3) State v. Donovan, 10 N.D. 203, where it was held
that a register of sales of intoxicating liquor kept by a druggist
pursuant to a statute providing that such record

															"shall be open for the inspection of the public at all
reasonable times during business hours, and any person so desiring
may take memoranda or copies thereof"

															was a public record. Comment. -- The State court construed the statute to
make the druggist a public officer and, as such, the custodian of
the register for the State. The court quoted authority to the
effect that the register was "the property of the state, and not of
the citizen, and is in no sense a private memorandum." 10 N.D. at
209. Are we to infer from the Court's opinion in this case that the
books and records petitioner customarily kept were not his
property, but that of the United States Government, and that they
"shall be open for the inspection of the public at all reasonable
times during business hours, and any person . . . may take
memoranda or copies thereof"? Ibid., and cf. Evanston
v. Gunn, supra. (4) State v. Davis, 108 Mo. 666, where it was held that
a druggist had no privilege as to the prescriptions he filled for
sales of intoxicating liquor. Page 335 U. S. 61 Comment. -- Here, the prescriptions were "required to
be kept by law," but they constituted "public" records in the pure Wilson sense. The prescriptions belonged to the physicians
or their patients, "and the druggist [was] merely their custodian."
108 Mo. at 671.

															(5) State v. Davis, 68 W.Va. 142 (prescription-keeping
case virtually identical with State v. Davis, 108 Mo.
666).

															(6) People v. Combs, 158 N.Y. 532, where it was held
that a coroner had no privilege as to official inquest records,
required to be filed with the county clerk, over his contention
that they were private records because they were false and had been
found in his own office. Comment. -- "The papers were in a public office, in the
custody of a clerk who was paid by the city. On their face, they
were public records, and intended to be used as such." 158 N.Y. at
539.

															(7) Louisville & N. R. Co. v. Commonwealth, 51 S.W.
(Ky.) 167, where it was held that a railroad corporation had no
privilege as to a tariff sheet. Comment. -- The tariff sheet was "required by law to be
publicly posted at the station, and was in fact so posted." 51 S.W.
at 167. Petitioner is not a railroad corporation, and his records
were not "publicly posted."

															(8) State v. Smith, 74 Iowa 580, where it was held that
a pharmacist had no privilege as to the monthly reports of liquor
sales that he had made to the county auditor pursuant to a
statutory reporting requirement. Comment. -- The reports in the auditor's office
were

															"public records of the office, which are open to the inspection
of all, and may be used in evidence in all cases between all
parties, when competent, to establish any fact in issue for
judicial determination."

															74 Iowa at 583, 584. Petitioner's records were in his
possession, and were not open for public inspection. Page 335 U. S. 62 (9) State v. Cummins, 76 Iowa 133 (same as State v.
Smith, supra ).

															(10) People v. Henwood, 123 Mich. 317 (liquor sales
reporting requirement held valid).

															(11) Langdon v. People, 133 Ill. 382, held that seizure
pursuant to search warrant of official State documents unlawfully
in appellant's possession constituted reasonable search -- "They
were not private papers." 133 Ill. at 398.

															In summary of the authorities cited as illustrations of the
principle recognized and applied by the Court in the Wilson case, then, it should be obvious that they neither
stand for the proposition that the fact that private records are
required to be kept by statute makes them public records by
operation of law, nor did Mr. Justice Hughes misconstrue them in
reaching the decision in the Wilson case.

															Were there any doubt as to the point of the illustrations in the Wilson case, surely we could safely permit that doubt to
be resolved by the Wilson opinion itself. After reviewing
the illustrative cases, Mr. Justice Hughes observed:

															"The fundamental ground of decision in this class of cases is
that where, by virtue of their character and the rules of law
applicable to them, the books and papers are held subject to
examination by the demanding authority, the custodian has no
privilege to refuse production although their contents tend to
criminate him. In assuming their custody, he has accepted the
incident obligation to permit inspection."

															221 U.S. at 221 U. S.
381 -382.

															Evidently the dictum in the Wilson case and the
authorities therein cited need to be bolstered for the use to which
they are put in this case. We are told that

															"Other state supreme court decisions, subsequent to the Page 335 U. S. 63 Wilson case, similarly treat as nonprivileged, records
required by statute to be kept."

															These are the five instances cited:

															(1) Paladini v. Superior Court, 178 Cal. 369, where it
was held that the statutory procedure whereby the State Market
Director could compel the production of the sales records of
licensed fish dealers was valid. Comment. -- The court did not hold that the records
were "nonprivileged," but disposed of the contention that the
statute violated the constitutional privilege against
self-incrimination on the ground that

															"[t]he proceeding before the state market director is not
criminal in its nature, and the order compelling the petitioners to
produce their books before the state market director was not in
violation of the constitutional provision, which prohibits a court
or officer from requiring a defendant in a criminal case to furnish
evidence against himself."

															178 Cal. at 373. The court did dispose of the contention that
the statute violated the Fourth Amendment of the United States
Constitution on the ground that the records were not private. But
the records here were public records because, since it was conceded
that the fish belonged to the State, "[t]hey contain a record of
the purchase and sale of the property of the state, by those having
a qualified or conditional interest therein." Ibid. There
is no suggestion in this case that petitioner's records were public
records because his fruit and vegetables were the property of the
United States Government.

															(2) St. Louis v. Baskowitz, 273 Mo. 543, where a
municipal ordinance requiring junk dealers to keep books of
registry recording their purchases and providing that the books be
open for inspection and examination by the police or any citizen
was upheld against the contention that it violated the State
constitutional provision against unreasonable searches and seizures for private purposes. Page 335 U. S. 64 Comment. -- The case was disposed of by the court's
interpretation of the words "any citizen" as being limited in
meaning to "one whose property has been stolen." 273 Mo. at 576.
The records here were "required to be kept by statute," it is true,
but the court had no occasion to, and did not, go into the question
as to whether the records were "nonprivileged."

															(3) State v. Legora, 162 Tenn. 122, where a statute
requiring junk dealers to keep a record of their purchases was
upheld. Comment. -- A record which "shall at all times be open
to inspection of . . . any person who may desire to see the same,"
162 Tenn. at 124, is, of course, a "public" record. Evanston v.
Gunn, supra; cf. St. Louis v. Baskowitz, supra. (4) State v. Stein, 215 Minn. 308, where a statute
requiring licensed dealers in raw furs to keep records of their
sales and purchases was upheld. Comment. -- The records here were public records for
the same reason that the records involved in the Paladini case were public records -- "the state is the owner, in trust for
the people, of all wild animals." 215 Minn. at 311.

															(5) Financial Aid Corporation v. Wallace, 216 Ind. 114,
where a statute requiring licensed small loan concerns to keep
records and providing for their inspection by the State Department
of Financial Institutions was upheld. Comment. -- The court had no occasion to, and did not,
go into the question as to whether the records were either "public"
or "nonprivileged."

															It appears to me, therefore, that the authorities give no
support to the broad proposition that, because records are required
to be kept by law, they are public records, and hence
nonprivileged. Private records do not thus Page 335 U. S. 65 become "public" in any critical or legally significant sense;
they are merely the records of an industry or business regulated by
law. Nor does the fact that the Government either may make, or has
made, a license a prerequisite for the doing of business make them
public in any ordinary use of the term. While Congress may, in time
of war, or perhaps in circumstances of economic crisis, provide for
the licensing of every individual business, surely such licensing
requirements do not remove the records of a man's private business
from the protection afforded by the Fifth Amendment. Even the
exercise of the war power is subject to the Fifth Amendment. See, e.g., Hamilton v. Kentucky Distilleries Co., 251 U. S. 146 , 251 U. S.
155 -156. Just as the licensing of private motor vehicles
does not make them public carriers, the licensing of a man's
private business, for tax or other purposes, does not, under our
system, at least so I had supposed, make him a public officer.

															Different considerations control where the business of an
enterprise is, as it were, the public's. Clearly the records of a
business licensed to sell state-owned property are public records. Cf., e.g., Paladini v. Superior Court, supra; State v. Stein,
supra. And the records of a public utility, apart from the
considerations relevant to corporate enterprise, may similarly be
teated as public records. Cf., e.g., Louisville & N. R. Co.
v. Commonwealth, supra; Financial Aid Corporation v. Wallace,
supra. This has been extended to the records of "occupations
which are malum in se, or so closely allied thereto as to
endanger the public health, morals, or safety." St. Louis v.
Baskowitz, supra, 273 Mo. at 554; cf., e.g., State v.
Legora, supra; State v. Donovan, supra; State v. Smith,
supra. Here, the subject matter of petitioner's business was not such
as to render it public. Surely there is nothing inherently
dangerous, immoral, or unhealthy about the Page 335 U. S. 66 sale of fruits and vegetables. Nor was there anything in his
possession or control of the records to cast a cloud on his title
to them. They were the records that he customarily kept. I find
nothing in the Act, or in the Court's construction of the Act, that
made him a public officer. He was being administered, not
administering. Nor was he in any legitimate sense of the word a
"custodian" of the records. I see nothing frivolous in a
distinction between the records of an "unincorporated entrepreneur"
and those of a corporation. On the contrary, that distinction was
decisive of the Wilson holding:

															"But the corporate form of business activity, with its chartered
privileges, raises a distinction when the authority of government
demands the examination of books."

															221 U.S. at 221 U. S.
382 .

															And the Court quoted at length from Hale v. Henkel, 201 U. S. 43 , 201 U. S.
74 -75:

															". . . we are of the opinion that there is a clear distinction
in this particular between an individual and a corporation, and
that the latter has no right to refuse to submit its books and
papers for an examination at the suit of the State. The individual
may stand upon his constitutional rights as a citizen. He is
entitled to carry on his private business in his own way. His power
to contract is unlimited. He owes no duty to the State or to his
neighbors to divulge his business, or to open his doors to an
investigation, so far as it may tend to criminate him. . . ."

															"Upon the other hand, the corporation is a creature of the
State. It is presumed to be incorporated for the benefit of the
public. It receives certain special privileges and franchises. . .
."

															221 U.S. at 221 U. S.
383 Page 335 U. S. 67 The distinction between corporate and individual enterprise is
one of the deepest in our constitutional law, as it is for the
shapers of public policy.

															The phrase "required to be kept by law," then, is not a magic
phrase by which the legislature opens the door to inroads upon the
Fifth Amendment. Statutory provisions similar to § 202(b) of this
Act, requiring the keeping of records and making them available for
official inspection, are constitutional means for effective
administration and enforcement. [ Footnote 2/18 ] It follows that those charged with the
responsibility for such administration and enforcement may compel
the disclosure of such records in conformity with the Fourth
Amendment. See Boyd v. United States, supra, at 116 U. S.
623 -624,. But it does not follow that such disclosures
are beyond the scope of the protection afforded by the Fifth
Amendment. For the compulsory disclosure of a man's

															"private books and papers, to convict him of crime, or to
forfeit his property, is contrary to the principles of a free
government. It is abhorrent to the instincts of an Englishman; it
is abhorrent to the instincts of an American. It may suit the
purposes of despotic power, but it cannot abide the pure atmosphere
of political liberty and personal freedom." Id. at 116 U. S.
632 .

															The Court in the Boyd case was fully cognizant of the
sense and significance of the phrase "books required by law to be
kept for their inspection." Id. at 116 U. S.
623 -624. Surely the result of that decision, if not the
opinion itself, speaks loudly against the claim that, merely by
virtue of a recordkeeping provision, the constitutional privilege
against self-incrimination becomes inoperative. The document in
controversy in the Boyd case was historically, and as a
matter of fact, much more of a "required record" than the books and
records the petitioner here "customarily Page 335 U. S. 68 kept." If the Court's position today is correct, the Boyd case was erroneously decided. [ Footnote 2/19 ] Page 335 U. S. 69 In disregarding the spirit of that decision, the Court's opinion
disregards the clarion call of the Boyd case: obsta
principiis. For, while it is easy enough to see this as a
petty case, and while some may not consider the rule of law today
announced to be fraught with unexplored significance for the great
problem of reconciling individual freedom with governmental
strength, the Boyd opinion admonishes against being so
lulled.

															"It may be that it is the obnoxious thing in its mildest and
least repulsive form; but illegitimate and unconstitutional
practices get their first footing in that way, namely, by silent
approaches and slight deviations from legal modes of procedure.
This can only be obviated by adhering to the rule that
constitutional provisions for the security of person and property
should be liberally construed. A close and literal construction
deprives them of half their efficacy, and leads to gradual
depreciation of the right, as if it consisted more in sound than in
substance." Id. at 116 U. S.
635 .

															Violators should be detected, tried, convicted, and punished --
but not at the cost of needlessly bringing into question
constitutional rights and privileges. While law enforcement
officers may find their duties more arduous and crime detection
more difficult as society becomes more complicated, the
constitutional safeguards of the Page 335 U. S. 70 individual were not designed for short-cuts in the
administration of criminal justice.

															And so I conclude that the Court has misconstrued the Fifth
Amendment by narrowing the range and scope of the protection it was
intended to afford. The privilege against self-incrimination is,
after all, "as broad as the mischief against which it seeks to
guard." Counselman v. Hitchcock, supra, at 142 U. S. 563 .
If Congress, by the easy device of requiring a man to keep the
private papers that he has customarily kept, can render such papers
"public" and nonprivileged, there is little left to either the
right of privacy or the constitutional privilege.

															Even if there were authority for the temerarious pronouncement
in today's opinion, I would insist that such authority was ill
founded, and ought not to be followed. There is no such authority.
The Court's opinion can gain no strength beyond itself. The
persuasiveness of its opinion is not enhanced by the endeavor of
the majority of the Court, so needlessly reaching out for a
constitutional issue, to rest its ominous inroads upon the Fifth
Amendment not on the wisdom of their determination, but on blind
reliance upon nonpersuasive authority.

															[ Footnote 2/1 ]

															"A decision could be made either way without contradicting the
express words of the act, or, possibly, even any very clear
implication." Holmes, C.J., in Hooper v. Bradford, 178
Mass. 95, 97, 59 N.E. 678.

															[ Footnote 2/2 ]

															The entire § 202 of the Emergency Price Control Act of 1942, as
amended, is as follows:

															"(a) The Administrator is authorized to make such studies and
investigations, to conduct such hearings, and to obtain such
information as he deems necessary or proper to assist him in
prescribing any regulation or order under this Act, or in the
administration and enforcement of this Act and regulations, orders,
and price schedules thereunder."

															"(b) The Administrator is further authorized, by regulation or
order, to require any person who is engaged in the business of
dealing with any commodity, or who rents or offers for rent or acts
as broker or agent for the rental of any housing accommodations, to
furnish any such information under oath or affirmation or
otherwise, to make and keep records and other documents, and to
make reports, and he may require any such person to permit the
inspection and copying of records and other documents, the
inspection of inventories, and the inspection of defense-area
housing accommodations. The Administrator may administer oaths and
affirmations and may, whenever necessary, by subpoena required any
such person to appear and testify or to appear and produce
documents, or both, at any designated place."

															"(c) For the purpose of obtaining any information under
subsection (a), the Administrator may by subpoena require any other
person to appear and testify or to appear and produce documents, or
both, at any designated place."

															"(d) The production of a person's documents at any place other
than his place of business shall not be required under this section
in any case in which, prior to the return date specified in the
subpoena issued with respect thereto, such person either has
furnished the Administrator with a copy of such documents
(certified by such person under oath to be a true and correct
copy), or has entered into a stipulation with the Administrator as
to the information contained in such documents."

															"(e) In case of contumacy by, or refusal to obey a subpoena
served upon, any person referred to in subsection (c), the district
court for any district in which such person is found or resides or
transacts business, upon application by the Administrator, shall
have jurisdiction to issue an order requiring such person to appear
and give testimony or to appear and produce documents, or both; and
any failure to obey such order of the court may be punished by such
court as a contempt thereof. The provisions of this subsection
shall also apply to any person referred to in subsection (b), and
shall be in addition to the provisions of section 4(a)."

															"(f) Witnesses subpoenaed under this section shall be paid the
same fees and mileage as are paid witnesses in the district courts
of the United States."

															"(g) 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."

															"(h) The Administrator shall not publish or disclose any
information obtained under this Act that such Administrator deems
confidential or with reference to which a request for confidential
treatment is made by the person furnishing such information, unless
he determines that the withholding thereof is contrary to the
interest of the national defense and security."

															"(i) Any person subpoenaed under this section shall have the
right to make a record of his testimony and to be represented by
counsel."

															56 Stat. 23, 30, as amended by § 105 of the Stabilization
Extension Act of 1944, 58 Stat. 632, 637, 50 U.S.C.App. § 922.

															[ Footnote 2/3 ]

															Technically, there is an additional or fifth requirement -- to
furnish information "under oath or affirmation or otherwise" -- but
this requirement is really covered by the other four.

															[ Footnote 2/4 ]

															The Administrator required this petitioner to keep "records of
the same kind as he has customarily kept." § 14(b) of Maximum Price
Regulation No. 426, 8 Fed.Reg. 9546. As a practical matter,
therefore, the statute as construed by the Court provides immunity
only for compelled oral testimony.

															[ Footnote 2/5 ] But cf. Carroll, Through the Looking Glass, c. 6:

															"'The question is' said Alice, 'whether you can make words mean
so many different things.'"

															"'The question is,' said Humpty Dumpty, 'which is to be the
master -- that's all.'"

															[ Footnote 2/6 ] See H.R. 5479, 77th Cong., 1st Sess., as introduced on
August 1, 1941, in the House of Representatives and referred to the
Committee on Banking and Currency, at p. 8; H.R. 5990, 77th Cong.,
1st Sess., as reported out by the Committee on November 7, 1941, at
p. 12 (at the conclusion of the hearings on H.R. 5479, the
Committee directed its chairman to introduce this new bill
representing the old bill as amended by the Committee in executive
session; see H.Rep. 1409, 77th Cong., 1st Sess., p. 3);
H.Rep. 1409, supra, at p. 9; 87 Cong.Rec. 9073, 9231; id. at 9232 (Wolcott amendment to strike out all of § 202
because previous amendment of the bill rendered this section for
"obtaining information" redundant); id. at 9233 (Wolcott
amendment adopted by the House); S.Rep.No.931, 77th Cong., 2d
Sess., p. 21 (H.R. 5990, as passed by the House, amended by
reinstating § 202 for the purpose of "obtaining information"); and see finally the Conference Report accompanying H.R.
5990, H.Rep. 1658, 77th Cong., 2d Sess., pp. 25-26 (agreeing to §
202).

															[ Footnote 2/7 ]

															Indeed, the only reference to the immunity provision in the
legislative documents, see 335 U.S.
1 fn2/6|>footnote 6 supra, consists merely of
practically verbatim repetitions of the provision.

															[ Footnote 2/8 ]

															The House originally struck out the entire § 202 because a
previously adopted amendment had made the section "redundant." 87
Cong.Rec. 9232-9233. The previously adopted amendment had inserted
a § 203(a), which simply provided that:

															"The Administrator and the Board of Administrative Review or any
member or commissioner thereof may administer oaths and
affirmations, may require by subpoena or otherwise the attendance
and testimony of witnesses and the production of documents at any
designated place. 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 Ed.,
title 49, sec. 46), shall apply with respect to any individual who
specifically claims such privilege." Id. at 9226.

															As passed by the House, then, the bill would have authorized the
Administrator to require the production of the records here in
issue, but there would have been no question of their being
"public" records, and petitioner would clearly have been accorded
the immunity herein claimed. The House Managers yielded as to the
recordkeeping requirements and the reinstatement of the entire §
202, but there is no mention in their report of the provisions of
subsection (g), let alone any indication that there was any
difference intended in the scope of the immunity accorded by the
two bills.

															[ Footnote 2/9 ]

															Hearings before the Senate Committee on Banking and Currency on
H.R. 5990, 77th Cong., 1st Sess., at pp. 68-71, 112-23, 144-60,
174-81, 550-53.

															[ Footnote 2/10 ] Id. at 154, 175, 180-81.

															[ Footnote 2/11 ] See 335 U.S.
1 fn2/8|>footnote 8 supra. [ Footnote 2/12 ]

															Every reference in the Court's opinion to p. 181 et
seq. of the hearings is to the General Counsel's brief -- an
exhibit -- not to oral testimony.

															[ Footnote 2/13 ]

															I do not dispute either (a) that the hearings (including the
brief as an exhibit thereto) were printed and available
before the Senate passed the bill, or (b) that there is a
possibility that a curious Senator (but not a Representative) might
have read all this fine print. I mean merely to suggest (a) that,
in view of the times, the typography, and the length of the text,
the chances are remote, and (b) that, in view of the importance of
the issue, it is indeed a hazardous matter to attribute positive
congressional meaning to such an improbable source. While it may be
presumed that the Senate subcommittee revised the House bill "in
the light of the hearings," all that means is that they heard what
they heard -- it does not mean that they read everything they might
have read. It would be enough to attribute to a diligent
committeeman familiarity with transcribed oral testimony of such
volume as that on this bill. But cf. id. at 15: "Senator
Barkley. Mr. Chairman, none of us has read the hearings in the
House -- or maybe a few of us have"; id. at 26: "Senator
Taft. I have not read the House hearings, I am ashamed to say."

															On January 26, 1942, Representative Gifford stated on the floor
of the House:

															"But this licensing business, 'Compulsory loyalty will crack
sooner than the genuine kind.' During the last World War, it was
loyalty by cooperation. They had licensing, yes, on food products
and on fuel, but little of anything else. If the licensee was
punished, it was only a slap on the wrist. If he would contribute
to the Red Cross he was forgiven. I have a compiled brief on the
licensing methods that I could go into at length. An hour would be
necessary to properly discuss it and to recite the experiences of
ours and other nations. Canada now has it. Let me read to you their
statement of policy. These restrictions are not designed to curtail
business operations in any way. But by placing every person who in
any way handles the commodities named in the order under license,
the Board will have the machinery with which to make speedy checks
on available stocks and to police more effectively any price-fixing
order which may be instituted."

															(88 Cong.Rec. 672.)

															To trace knowledge of the OPA brief to a congressional reader by
assuming from this statement that Representative Gifford, who
opposed the adoption of these provisions of the bill, was such a
reader, and from that to attribute to Congress knowledge of what
was in an exhibit to a committee hearing, is so attenuated a
process of inferential reasoning as to discredit the whole
paraphernalia of legislative history. That the Congress itself does
not care to be charged with knowledge of all the extraneous matter
for which either House has granted leave to print in the Record is
apparent from the rules of the Joint Committee on Printing
providing that "the same shall be published in the Appendix" and
"in 6 1/2 point type." See Cong.Rec., Dec. 11, 1947, p.
A5039. There is, moreover, little basis for concluding that the
Gifford "compiled brief" was the OPA brief -- different briefs
frequently quote from the same authority. On the contrary, the OPA
brief hardly presented the argument that "Compulsory loyalty will
crack sooner than the genuine kind," nor did it contain material
demonstrating either the narrow scope or the weaknesses of World
War I licensing.

															[ Footnote 2/14 ]

															Putting the word "enforcement" in § 202(a) in italics does
little to solve our problem of statutory construction -- for
enforcement means enforcement. The word is hardly enervated by the
extension of immunity to the person compelled to disclose his books
and records. The information thus obtained might well assist the
Administrator in the enforcement of the Act against the suppliers
of, buyers from, or competitors of the owner of the records. As to
his suppliers, the records would, of course, disclose compliance
with maximum price regulations; as to the buyers, many regulations
established maximum price on a cost-plus basis, and the information
obtained would be essential to proof of violation; as to the
competitors, many regulations established maximum price for new
sellers on the basis of their closest competitors, and, here again,
the information obtained might well be essential to the enforcement
of the Act.

															[ Footnote 2/15 ]

															Needless to say, the constitutionality of the Fifth Amendment is
not raised!

															[ Footnote 2/16 ]

															For the text of § 202(h), see 335 U.S.
1 fn2/2|>note 2 supra. H.R. 5479 as originally
introduced ( see 335 U.S.
1 fn2/6|>note 6 supra ) would have left it to the
Administrator to determine whether the information obtained should
be deemed confidential. The bill was changed by the House Committee
to its final form whereby the person furnishing the information
could request confidential treatment so as to give such persons
"further protection." H.R.Rep.1409, 77th Cong., 1st Sess., p. 9.
"Further" meant in addition to the statutory immunity afforded by §
202(g)! Ibid. [ Footnote 2/17 ] See summary of argument for the United States, 221 U.S.
at 221 U. S. 366 .
The Lehmann Brief deserves reading.

															[ Footnote 2/18 ] See 335 U.S.
1 fn2/14|>note 14, supra. [ Footnote 2/19 ]

															The Boyds had contracted to supply plate glass to the Government
on a duty-free price basis. They contended that they had fulfilled
this contract out of their stock on hand. They had previously
secured a free entry of 29 cases of plate glass, and claimed that
this shipment replaced in part the glass that they had furnished
the Government; the Government asserted that that shipment
contained more than the amount of the glass furnished. After the
Boyds had secured a free permit and entry of a second shipment of
35 cases of plate glass, but before delivery to them, the goods
were seized and the free permit was revoked. In the proceedings for
the forfeiture of the 35 cases, the Government, pursuant to the
statutory procedure held unconstitutional by the Court, sought and
secured production from the Boyds of the invoice covering the first
shipment of the 29 cases. This invoice was a "record required to be
kept by statute." The Act of July 31, 1789, required the importer
to make an official entry with the collector at the port of
arrival, and there produce the original invoice to the collector. 1
Stat. 29, 39-40; as amended by the Act of August 4, 1790, 1 Stat.
145, 161-62; as amended by the Act of March 2, 1799, 1 Stat. 627,
655-56 (invoice must be signed by collector; and see form
of oath required to accompany invoice); as amended by the Act of
April 20, 1818, 3 Stat. 433, 434, 436; as amended by the Act of
March 1, 1823, 3 Stat. 729-30 (no entry without invoice unless
importer gives bond to secure production of invoice within stated
period), 737 (invoice, certified with collector's official seal,
conclusive evidence of value of imported goods in any court of the
United States); as amended by the Act of August 30, 1842, 5 Stat.
548, 564-65 (collector authorized to examine any importer and to
require production of invoices); as amended by the Act of March 3,
1863, 12 Stat. 737-38 (required invoices to be in triplicate and
indorsed prior to shipment to this country by a consular officer
who "shall deliver to the person producing the same one of said
triplicates, to be used in making entry of said goods, wares, or
merchandise; shall file another in his office, to be there
carefully preserved; and shall, as soon as practicable, transmit
the remaining one to the collector of the port of the United States
at which it shall be declared to be the intention to make entry of
said goods, wares, or merchandise"), 740 (penalty for wilful
destruction or concealment of invoices) and (district judge where
it appears to his satisfaction that fraud on revenue has been
committed or attempted shall authorize collector to seize
invoices); as amended by the Act of June 30, 1864, 13 Stat. 202,
217-218 (invoice must be made out in the weights and measures of
the country from which importation made); as amended by the Act of
July 18, 1866, 14 Stat. 178, 187 (seizure of invoices); as amended
by the Act of March 2, 1867, 14 Stat. 546, 547 (seizure of
invoices); as amended by the Act of June 22, 1874, 18 Stat. 186,
187 (§ 5 -- seizure of invoices -- held unconstitutional in Boyd case). For administrative requirements as to form,
contents, filing and keeping of invoices, in effect at time of
entry involved in Boyd case, see General
Regulations under the Customs and Navigation Laws (1884) Arts.
314-34; see also Elmes, Customs (1887) c. VII.

															MR. JUSTICE JACKSON, with whom MR. JUSTICE MURPHY agrees,
dissenting.

															The protection against compulsory self-incrimination, guaranteed
by the Fifth Amendment, is nullified to whatever extent this Court
holds that Congress may require a citizen to keep an account of his
deeds and misdeeds and turn over or exhibit the record on demand of
government inspectors, who then can use it to convict him. Today's
decision introduces a principle of considerable moment. Of course,
it strips of protection only businessmen and their records; but we
cannot too often remind ourselves of the tendency of such a
principle, once approved, to expand itself in practice "to the
limits of its logic." That it has already expanded to cover a
vast Page 335 U. S. 71 area is apparent from the Court's citation of twenty-six federal
statutes that present parallels to the situation here under review.
It would, no doubt, simplify enforcement of all criminal laws if
each citizen were required to keep a diary that would show where he
was at all times, with whom he was, and what he was up to. The
decision of today, applying this rule not merely to records
specially required under the Act, but also to records "customarily
kept," invites and facilitates that eventuality.

															The practice approved today obviously narrows the protections of
the Fifth Amendment. We should not attribute to Congress such a
purpose or intent unless it used language so mandatory and
unmistakable that it left no alternative, and certainly should not
base that inference on "legislative history" of such dubious
meaning as exists in this case. Congress, if we give its language
plain and usual meaning, has guarded the immunity so scrupulously
as to raise no constitutional question. But if Congress had
overstepped, we should have no hesitation in holding that the
Government must lose some cases, rather than the people lose their
immunities from compulsory self-incrimination. However, in this
case, the plain language of Congress requires no such choice. It
does require, in my view, that this judgment be reversed.

															MR. JUSTICE RUTLEDGE, dissenting.

															With reservations to be noted, I agree with the views expressed
by MR. JUSTICE JACKSON, and with MR. JUSTICE FRANKFURTER's
conclusions concerning the effect of the immunity provision, §
202(g) of the Emergency Price Control Act. [ Footnote 3/1 ] Page 335 U. S. 72 With them, I cannot accept the Court's construction of that
section which reduces the statutory immunity to the scope of that
afforded by the Fifth Amendment's prohibition against compulsory
self-incrimination. This Court has not previously so decided.
[ Footnote 3/2 ] Nor, in my
judgment, Page 335 U. S. 73 can the present decision be reconciled with the language of the
statute or its purpose obvious on its face.

															That wording compels testimony and the production of evidence,
documentary or otherwise, regardless of any claim of constitutional
immunity, whether valid or not. [ Footnote 3/3 ] But, to avoid the constitutional
prohibition and, it would seem clearly, also any delay in securing
the information or evidence required, the Act promises immunity
"for or on account of any transaction, matter or thing, concerning
which he may testify, or produce evidence . . . in obedience to"
the subpoena. [ Footnote 3/4 ]

															The statute thus consists of a command and a promise. In
explicit terms, the promise is made coextensive with the command.
It expressly precludes prosecution, forfeiture or penalty "for or
on account of any transaction, matter or thing" concerning which
evidence is produced in compliance with the subpoena. [ Footnote 3/5 ] Compelling testimony and
giving immunity "for or on account of any transaction, matter or
thing, concerning which he may testify" are very different from
compelling it and promising that, when given, the person complying
"shall have only the immunity given by the Fifth Amendment, and no
more." To constrict the statute's wording so drastically is not
simply to interpret, it is to rewrite the congressional Page 335 U. S. 74 language, and, in my view, its purpose. If Congress had intended
only so narrow a protection, it could easily have said so without
adding words to lead witnesses and others to believe more was
given.

															It may be, however, notwithstanding the breadth of the
promissory terms, that the statutory immunity was not intended to
be so broad as to cover situations where the claim of
constitutional right precluded is only frivolous or insubstantial,
or not put forward in good faith. [ Footnote 3/6 ] And if, for such a reason, the literal
breadth of the wording may be somewhat cut down, restricting the
statute's immunity by excluding those situations would neither
restrict the effect of the statutory words to that of the Amendment
itself nor give them the misleading connotation of the Court's
construction. Such a construction would not be departing widely
from either the statute's terms or their obvious purpose to give
immunity broader than the Amendment's, and would be well within the
bounds of statutory interpretation. On the other hand, the Court's
reduction of the statutory wording to equivalence in effect with
the constitutional immunity, nearly if not quite makes that wording
redundant or meaningless; in any event, it goes so far in rewriting
the statutory language as to amount to invasion of the legislative
function.

															Whether one or the other of the two broader views of the
statute's effect is accepted, therefore, it is neither necessary
nor, I think, reasonable or consistent with the statutory wording
and object or with this Court's function as strictly a judicial
body to go so far in reconstructing what Congress has done, as I
think results from reducing the statutory immunity to equivalence
with the constitutional one. Page 335 U. S. 75 Since it is not contended that there was not full compliance
with the subpoena in this case, that compliance was excessive in
the presently material portions of the evidence or information
produced, or that the claim of constitutional immunity precluded
was frivolous, insubstantial or not made in good faith, I think the
judgment should be reversed by applying the statutory immunity,
whether in one or the other of the two forms which may be
applied.

															In this view, I am relieved of the necessity of reaching the
constitutional issue resulting from the Court's construction, and I
express no opinion upon it except to say that I have substantial
doubt of the validity of the Court's conclusion, and indicate some
of the reasons for this. I have none that Congress itself may
require the keeping and production of specified records, with
appropriate limitations, in connection with business matters it is
entitled to and does regulate. That is true not only of corporate
records, Wilson v. United States, 221 U.
S. 361 , but also of individual business records under
appropriate specification and limitations, as the numerous
instances cited in MR. JUSTICE FRANKFURTER's opinion
illustrate.

															But I seriously doubt that, consistently with the Fourth
Amendment, as well as the prohibition of the Fifth against
compulsory self-incrimination, Congress could enact a general law
requiring all persons, individual or corporate, engaged in business
subject to congressional regulation to produce, either in evidence
or for an administrative agency's or official's examination, any
and all records, without other limitation, kept in connection with
that business. Such a command would approach too closely in effect
the kind of general warrant the Fourth Amendment outlawed. That
would be even more obviously true, if there were any difference, in
case Congress Page 335 U. S. 76 should delegate to an administrative or executive official the
power to impose so broad a prohibition.

															The authority here conferred upon the Administrator by the
Emergency Price Control Act, in reference to recordkeeping and
requiring production of records, closely approaches such a command.
Congress neither itself specifies the records to be kept and
produced upon the Administrator's demand nor limits his power to
designate them by any restriction other than that he may require
such as "he deems necessary or proper to assist him," § 202(a),
(b), (c), in carrying out his functions of investigation and
prescribing regulations under, as well as of administration and
enforcement of, the Act. And as the authority to specify records
for keeping and production was carried out by the Administrator,
the only limitation imposed was that the records should be such as
had been "customarily kept." § 14(b), M.P.R. 426, 8 Fed.Reg. 9546,
9549. Such a restriction is little, if any, less broad than the one
concerning which I have indicated doubt that Congress itself could
enact consistently with the Fourth Amendment.

															The authorization, therefore, is one which raises serious
question whether, by reason of failure to make more definite
specification of the records to be kept and produced, the
legislation and regulations involved here do not exceed the
prohibition of the Fourth Amendment against general warrants and
unreasonable searches and seizures. There is a difference, of
course, and often a large one, between situations where evidence is
searched out and seized without warrant and others where it is
required to be produced under judicial safeguards. But I do not
understand that, in the latter situation, its production can be
required under a warrant that amounts to a general one. The Fourth
Amendment stands as a barrier to judicial and legislative, as well
as executive or administrative, excesses in this respect. Page 335 U. S. 77 Although I seriously question whether the sum of the statute, as
construed by the Court, the pertinent regulations, and their
execution in this case does not go beyond constitutional
limitations in the breadth of their inquiry, I express no
conclusive opinion concerning this, since, for me, the statutory
immunity applies, and is sufficient to require reversal of
petitioner's conviction.

															[ Footnote 3/1 ]

															56 Stat. 23, 30 [§ 202(g)], as amended, 50 U.S.C.App. § 901,
incorporating the provisions of the Compulsory Testimony Act of
1893, 27 Stat. 443, 49 U.S.C. § 46, quoted in the Court's opinion
in note 2 [ Footnote 3/2 ]

															Neither Heike v. United States, 227 U.
S. 131 , nor Wilson v. United States, 221 U. S. 361 ,
principally relied upon by the Court, approached such a ruling.

															The Wilson case dealt only with corporate records, and
the claim of a corporate officer having their custody to
constitutional immunity against being required to produce them.
None was required by law to be kept, in the sense that any federal
law required that it be kept and produced for regulatory purposes.
The only ruling was that a corporate officer has no personal
immunity against producing corporate records, which are, of course,
not his own, and that the corporation has no immunity of its own
under the Fifth Amendment's guaranty. The decision is not pertinent
to the presently tendered problem.

															The Heike decision is equally not apropos. The exact
ruling was that the evidence, from the production of which the
claimed right of immunity, constitutional as well as statutory,
arose

															"did not concern any matter of the present charge. Not only was
the general subject of the former investigation wholly different,
but the specific things testified to had no connection with the
facts now in proof much closer than that all were dealings of the
same sugar company." 227 U. S. 227 U.S.
131, 227 U. S. 143 .
The actual ruling, therefore, apart from the fact that a corporate
officer claimed immunity in large part for producing corporate
records, see id., 227 U. S. 142 -143, was that the petitioner had not
brought himself within the scope of the statutory authorization,
namely, because the "transaction, matter or thing" concerning which
he had testified had no substantial connection with the matters
involved in his prosecution. The decision is authority for nothing
more than that the immunity, at the most, does not attach when the
constitutional claim precluded, but said to bring the statute into
play, is insubstantial. The dictum stressed in the Court's opinion
that the statute "should be construed, so far as its words
fairly allow the construction, as coterminous with" (p. 227 U. S. 142 )
the constitutional immunity, not only was unnecessary, but as the
clause itself emphasized, explicitly negative exact equivalence.
(Emphasis added.)

															[ Footnote 3/3 ]

															The wording of the Compulsory Testimony Act neither requires nor
suggests that the right to the immunity given should turn on the
validity or invalidity of the constitutional claim which is
precluded. But, at the least, the Act would seem clearly to cover
both valid and substantially doubtful ones.

															[ Footnote 3/4 ] See the text of the Compulsory Testimony Act of 1893
quoted in note 2 of the Court's
opinion [ Footnote 3/5 ]

															The express limitation of the immunity to testimony or evidence
produced in obedience to the subpoena excludes immunity for
volunteered testimony or evidence, i.e., such as is given
in excess of the subpoena's requirement. But the terms of the
statute purport to exclude no other.

															[ Footnote 3/6 ] Cf. Heike v. United States, 227 U.
S. 131 . See 335 U.S.
1 fn3/2|>note 2, supra.

Summary: In Shapiro v. United States (1948), the Supreme Court ruled that a petitioner who produced sales records under an administrative subpoena could not claim immunity from prosecution under the Emergency Price Control Act. The Court interpreted the Act's legislative history as prioritizing record-keeping for enforcement purposes, not granting immunity to individuals disclosing records to the Price Administrator. The Court also cited judicial precedent, including the Compulsory Testimony Act of 1893, to support its decision. This case illustrates the Court's approach to interpreting statutes and balancing enforcement needs with individual rights.