Fred M. Vinson

“ 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 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. ”

“ In each case, the immunity proviso is set forth in conjunction with record-keeping requirements. And in each case, where the immunity provided concerns documents whose production might otherwise be excused on the ground of 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. ”

“ The implausibility of any such interpretation of congressional intent is highlighted by the unquestioned fact that Congress provided for price regulations enforcible against unincorporated entrepreneurs as well as corporate industry. ”

“ 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. ”

“ 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 effetive enforcement of the Lever Act, could possibly have intended § 202 (g) to proffer a 'gratuity to crime' by granting immunity to custodians of non-privileged records. ”

“ 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.A. § 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. ”

“ 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. ”

“ 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 non-corporate business, though his business is similarly subjected to governmental price control, and its required records are, under the Wilson rationale, similarly non-privileged. ”

“ 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. ”

“ 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 non-privileged (and hence non-immunizing) status as the sales record involved in the present case. ”

“ 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) . ”

“ 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. ”

“ In effect, this is to say that Congress intended the immunity proviso to frustrate a major aim of its statutory requirement of record-keeping and record inspection so far as it applies to non-corporate business men, but not so far as it applies to corporate officers. ”

“ 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 ”