Ex parte Brown

Hayden, J.,

delivered the opinion of the court.

The contention on the part of the petitioner is that it affirmatively appears on the face of the papers that the Criminal Court, by which the petitioner was committed for contempt, exceeded its jurisdiction in committing for the supposed offence. The only contempt, it appears, was the petitioner’s refusal to search for and produce certain telegraphic dispatches alleged to be in the office of the Western Union Telegraph Company in the city of St. Louis, of which company the petitioner is manager in that city, in obedience to a subpoena choces tecum issued by the Criminal Court at the instance of the grand jury for the city of St. Louis. This subpoena commands the petitioner to appear before the grand jury, and there testify in a matter pending before them, and there to produce “ any and all telegraphic dispatches or messages, or copies of the same, *486 now in the office of the Western Union Telegraph Company, of which you are manager, and which dispatches and messages are now in your possession and under your control,” etc. Here various persons are named as persons between whom dispatches passed, thus : “ Between Dr. J. C. Nidelet and A. B. Wakefield, and William Ladd and J. C. Nidelet,” etc., and the subpoena, after thus naming the persons, continues, “ and any and all telegrams * * * or copies or originals that may be in your possession, * * * which may have been sent or received by or between any or all of the above-mentioned parties within the last six months,” etc. In obedience to the writ, the petitioner appeared and testified before the grand jury; but, for reasons noticed below, declared, in answer to questions put, that he refused to examine the files of the company in the office of which he was manager, for the dispatches or copies. It appeared that these inquiries were made with a view of finding indictments against persons other than the petitioner, for offences committed within the proper jurisdiction. The petitioner, being admonished in open court, and still refusing, was committed as above stated. On the part of the petitioner the attempt is made to put his case on the broadest grounds, and the general questions involved will therefore be considered at first without reference to authorities.

It is evident that there is no foundation for the position of the petitioner as to the exemption of these messages in any natural right, even if he is considered here as representing the senders and receivers of these telegrams, as well as his own company. Whatever may be said as to a man’s thoughts, where, by communication on his part, those thoughts pass into the region of action, it becomes a mere matter of political regulation how far the State will go in compelling evidence of that action. The very provision— perhaps universal in the constitutions of our States — against unreasonable searches and seizures, and general and indefi *487 nite warrants, shows what primordial rights the individual has been willing to surrender to the State, even where the privac}' of home has been invaded.

The people, in their fundamental law, expressly provide that even this sanctity shall not remain inviolate against the hand of criminal justice. This provision of our Constitution, however (Const. Mo. 1875, Bill of Rights, art. 2, sect. 11), has little bearing upon the present question, except by way of argument and illustration. The general warrants of England and the writs of assistance of this country involved questions of a different nature from those relating to the social acts of the accused parties. Apart from the general nature of the warrants, which was the great evil and the decisive ground of illegality, — a truth which is perpetuated in the language of the constitutional provision,— the point was the indiscriminate seizure of all papers which the accused preserved in the privacy of his home, and the illegality of compelling, by force, communication of the contents of those papers ; thereby constraining the person, so far as the papers availed against him at all, to be his own accuser.

The difference is too obvious to be dwelt upon where the communication is the act of the person himself. It is said, indeed, that the communication by telegraph is not voluntary, as it is made, not because the person desires it, but because he must, in order to so communicate, put the operator in possession of the facts. Cooley’s Const. Lim. *307, note 1. But that the act of the person in thus communicating is, in the legal sense, a voluntary act, is apparent. The will of another does not, as it did in the case of Wilkes (Wilkes v. Wood, Lofft’s Rep. 1), disclose the contents of the papers. There is precisely the same voluntariness in the act of the sender of a telegram, however much he may dislike sending the message, that there is in the act of the principal who, driven by necessity, utters in presence of his a gent secrets the disclosure of which may ruin the princi *488 'pal’s business. In such a case the principal does not receive protection against disclosure by the agent, on the ground that the act of communicating was against the principal’s will. Whether made in writing or orally, the act of communicating, as such, is an act of the person ; and a man’s acts are evidence against him.

The act of sending and that of receiving thus subjecting the persons to the ordinary consequence of having their acts used as evidence against them, why should there be an exception in case of communication by telegraph? It is not claimed that the relation of the parties or the subject-matter of the messages forms any ground of exception similar to that existing in case of husband and wife, or attorney and client.

The question is merely of the production of the dispatches-as such. If .the parties to them or their subject-matter afford legal grounds of objection to the admission of their contents in evidence under established rules, such objections can be made when the telegrams are produced.

Here the question is of the mere production, and the contention is that that productión cannot be compelled. To-their production as telegrams there can be no objection on the ground of parties or subject-matter. A ground taken, however, in argument is that the sender and receiver desire their messages to be kept secret. But even this is an assumption. Where, as here, we are bound to believe that it is necessary for the purposes of criminal justice that the best evidence should be produced, — and the ability of courts of law to protect life and property must largely depend on the production of the best evidence, — it ought rather to be assumed, as the telegraph company undertakes to retain custody of the originals long after the transmission, that there could be no objection to their production for lawful purposes. It is in fact, so far as we can know, the company who resists production, not the parties to the dispatches.

*489 But even if the assumption is allowable, in such a case as the present, that sender and receiver object' to the production, what does this objection amount to when tested by legal principles? Communications regarded by the parties as sacred, — those from father to son, from brother to sister, from partner to partner, the closest secrets of the family or the firm, — the law ruthlessly lays bare. On none of these grounds is the position tenable. The argument bases itself on the mere method of communication.

It is, then, in the physical means that we must find reasons for the conclusion that a new rule must be adopted exempting telegrams in a company’s hands from a well-settled course of practice as to the writ of subpoena duces tecum.

The argument at this point centres on an assumed analogy between communication by government post and by telegraph. It is difficult to discern either physical or legal basis for this argument. The sender by post does not select a method by which he communicates the contents of his package even to the officers of the government, much less to a mere private person or company. The sender by post does not necessarily send any message at all, but perhaps only enclosures. He transmits a package in bulk.

The sender of a sealed package, by the mere method chosen, preserves its contents as private, until the receiver unseals it, as if the package had never left the sender’s desk; and such is the legal effect. Ex parte Jackson, 96 U. S. 727. The physical analogue of the telegraph is rather the telephone, since both, in their essential parts, are methods, not by which packages of contents unknown to the carrier are sent, but by which, through a substantial medium, persons at great distances from each other may converse.

It is true that writing becomes essential to telegraphy as a business, but the question now is as to the closeness of the physical analogy. The argument serves to show there is little foundation for comparison with the post, and to re *490 mind us that original telegrams are not “papers,” otherwise than as any open messages might be so called, which, for convenience in communicating them to the messenger, had been written on pieces of paper. That the sender by telegraph is forced to communicate the contents to the operator is immaterial, since the sender chooses to telegraph. In a legal sense, the act and its concomitants are voluntary. The legal basis for comparison with the post is still less. Communication by post depends upon provisions of statutory law, and these statutes do not apply to the telegraph. It is said that no statute expressly forbids the production before the grand jury of letters from the government mails. But the post-office laws are inconsistent with such production ; nor could the mails be carried if, in every State, the right of search were exercised. Again, it is not only under powers delegated by the people of the States to the Federal government that the latter has undertaken the control of the mails, but Congress has practically made the post a government monopoly. Even if it be held that the constitutional grant extends to telegraphs (Pensacola Tel. Co. v. Western, etc. Tel. Co., 96 U. S. 1), the power has not yet been exercised. The post-office, in the sense of the mail-service, is a department of the Federa government, and with the mails, as they are carried under acts of Congress, the States cannot directly or indirectly interfere. By what authority can it be assumed that a private person or company, engaged in the business of telegraphy, stands in relation to the State governments as does the Federal government when acting under express laws? But even the Federal government assumes no such privileges, as against the States and their legal process, as the private companies engaged in the business of telegraphy. What the post-office department undertakes to do is merely to carry and deliver, not to retain for its own purposes and at its pleasure, “ the best evidence ” of a vast number of transactions. Letters are privileged only for the brief time *491 they are in transit, and they become, when delivered, subject to the process of the courts. They have no inviolability as “ papers,” but merely as mail communications in transit.

Again, for the government to allow seals to be broken open would be for it to violate trusts. It could not, without breaking faith with those whom it virtually compels to send their letters by mail, permit seals to be broken under its own or under State process. It is not merely that a law exists punishing an offender who breaks the seal of a letter in the mail, —it is that the seal itself is a recognized type of inviolable secrecy, and that by a custom well established. Both in this country and England the powers of State refrain, even where special acts give an exceptional authority, from opening sealed packages intrusted to the government for carnage. But no such type of secrecy, and no such trust or custom exists in the case of the telegram. The sender, the receiver, and the company know that, upon due process of law, the original messages and copies — which the company has chosen to keep, and to take the consequence of keeping — must be produced, for such is the law.

By our statutes it is provided that any person connected with any telegraph line constructed wholly or in part in this State, either as clerk, operator, etc., who shall wilfully disclose the contents, or the nature of the contents, of any message or communication intrusted to him for transmission or delivery, except to a court of justice, to any person other than the one to whom it is addressed, or to his attorney, or agent, etc., shall, upon conviction, be punished, etc. Wag. Stats. 507, sect. 51. By a clause in another section of the statutes it is provided that every telegraph company, etc., shall be liable for a penalty, and special damages in addition, for the disclosure of the contents of any private dispatch to any person other than to him to whom it was addressed, or to his agents, etc. Wag. Stats. 325, sect. 13. *492 If the provision first quoted did not exist, the last would raise no intendment in favor of the ‘position of the petitioner. The object of this last provision is obvious. To stretch it beyond its express meaning, and assume a policy of law, is to beg the question. Besides, the construction of such acts is well settled. It is understood that there is always an exception in favor of legal process. Here the company, when called upon by the courts, discloses the contents of no dispatch. If the contents are disclosed, — and it does not follow that they will be, — the disclosure is the act of the law, notthat of the company. As said by Lord Ellenborough in a parallel case, where the clerk of an official had, on entering upon his office, taken an oath not to disclose anything he should learn in that capacity, “there is an implied exception of the evidence to be given in a court of justice, in obedience to a writ of subpoena. The witness must produce the book, and answer all questions respecting the collection of the tax, as if no such oath had been administered to him.” Lee v. Birrell, 3 Camp. 337.

After what has been said, it is unnecessary to dwell upon the consequences which would follow if the production of telegrams — great as this mass of evidence is, and relating to transactions infinite in number — were not left to that uniformity which can be secured only by a fixed rule of law. Since the evidence may be competent (if it can only be obtained), and, if competent, the court would have no power to exclude it, the guilt or innocence of an accused person is made, on the theory urged, to depend, not upon the operation of a rule of law which is uniform in every case, but upon private interest or caprice. Certainly, if telegrams are to be produced in any case of a criminal nature, there should be the power of compelling their production in all cases. Evidence of this kind should be uniformly admitted when competent, or uniformly excluded. Nor is it necessary to do more than to advert to the fact that if the great avenues through which the business of the community *493 passes, and in which evidence remains, are to be closed to the process of the courts ; if, as new methods of communication spring up, the courts are to be debarred from these sources of truth, they are, so far forth, liable to fail in the chief purpose which they are created to accomplish. Undoubtedly, great inconveniences may arise to the telegraph companies through subpoenas duces tecum; but that the companies have original evidence of transactions in their possession is the necessary result of the business as they carry it on, and they, like others, must submit to those annoyances which are consequent upon the execution of the laws.

Thus we have reached the conclusion that upon principle, and apart from authority, the position of the petitioner is not tenable, while so far as adjudged cases are produced they are uniformly to the effect that there is no peculiarity in the telegraphic messages, as such, which exempts them or their contents from the process of the courts. The Commonwealth v. Jeffries, 7 Allen, 548; National Bank v. National Bank, 7 W. Va. 544; The State v. Litchfield, 58 Me. 267; Heinslee v. Freedman, 2 Pars. Sel. Eq. Cas. 274; Incess Case, 2 L. T. (n. s.) 421. That telegraphic communications should be regarded as privileged is maintained by Judge Cooley. Cooley’s Const. Lim. *307, note 1; Am. L. Reg. 65, (February, 1879). In United States v. Babcock, 3 Dill. 567, the question above discussed was not raised.

What has been said serves to show that it is no excuse for the petitioner that to comply with the writ would require him to neglect his duties to the company, or that he has been instructed by his superior officers, and by his employers, the company, not to produce the telegrams. Nor can he urge that he has no control over these dispatches, because his duty is. merely to keep them as directed by the company. He is, as he testifies, the manager of the St. Louis office, and as such has the custody and control of the dispatches or copies called for, if there are any such tele *494 grams or copies in his office; and for these he has refused to search. The present is not the case of a clerk or subordinate summoned to produce papers not under his control. President, etc. v. Hillard, 5 Cow. 153; Austin v. Evans, 2 Man. & G. 446. The company is here a corporation, which can act only through agents; and service need not necessarily be upon the president, but may be upon the person who has the actual control, and means of effectually responding to the writ. Amey v. Long, 1 Camp. 14; s. c. 9 East, 473; 1 Arch. Q. B. Pr. 170. Undoubtedly, in civil cases, where the operation of the writ of subpoena duces tecum would be harsh, the power will be exercised in the sound discretion of the court. Crowther v. Appleby, L. R., 9 C. P. 23; Attorney-General v. Wilson, 9 Sim. 526; Lee v. Angas, L. R. 2 Eq. 59. It is further urged that there is no sufficient or certain description of the papers required, and that the call is for “ any and all ” messages which may have passed between the parties named, during the last six months, without reference to facts or subject-matter. But the obligation of secrecy imposed by law upon the grand jury is sufficient answer to the objection that the subject-matter of the dispatches is not indicated. Wag. Stats. 1083, sects. 16, 17. By agreement, the subpoena is considered to describe each day as if each day were named, and it is impossible for us to say on what days dispatches have passed, or that there have not passed dispatches on each day thus described. As the jurisdiction of the Criminal Court was not exceeded in committing the petitioner for the contempt charged, the petitioner must be remanded, and remain in the custody of the marshal.

Judge Bakewell concurs ; Judge Lewis dissents.