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Plaintiffs, owners of elevators outside an association alleged to be an unlawful trust, were suing the association, of which Sowerby was president, and certain railroads, for an alleged unlawful conspiracy to restrain and injure trade and commerce, including the business of plaintiffs. An order had been made in the case, on the application of plaintiffs, that Sowerby produce certain contracts between his association and the defendant railroads. This he declined to do, asking that the order be vacated, on the ground that such contracts, if produced, would tend to show a conspiracy which, as plaintiffs conceded, was criminal, and that proof of such a conspiracy would implicate him in the commission of the offense. Plaintiffs claimed that the immunity privilege could not be claimed in a civil suit of this character, but only in criminal prosecutions.- Held, that the order should be vacated. The constitutional guaranty is equally applicable to civil and criminal proceedings, and whether the person is sought to be examined as a witness or is required to produce as evidence books and papers in his possession.- Kellogg v. Sowerby, 32 Misc. (N. Y.) 327, 66 N. Y. Supp. 542.

In a civil suit for damages, defendant was commanded by a subpoena duces tecum, to produce the books of his business. He refused on the ground that they would tend to convict him of a criminal offense.— Held, that the same rule of law which excuses a witness from answering questions which may tend to convict him of a crime or misdemeanor undoubtedly excuses him also from producing books or papers, the contents of which may be used against him and tend to the same result.- Byass v. Sullivan, 21 How. Pr. (N. Y.) 50.

An agent of a carrier may constitutionally be compelled to produce its tariff sheets and testify from them against the company.- Louisville & N. R. Co. v. Commonwealth, 21 Ky. L. R. 239, 51 S. W. 167.

[9]

When witness will be compelled to answer.

A witness cannot refuse to testify before a federal tribunal on the ground that the immunity granted by the federal statute does not extend to prosecutions in a state court.- Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. R. (U. S.) 370.

In a proceeding under the Kansas Anti-trust Act, a witness can be asked only such questions as relate to the violation of the statute regarding transactions within the state and cannot be questioned as to matters of interstate commerce, which might constitute a violation of the Federal Anti-trust Act. Therefore, although information may be incidentally given which might possibly be used in a prosecution under the federal Act, such danger is remote and the provision of the state Act compelling witnesses to give incriminating testimony but giving immunity against state prosecution is not in violation of the Fourteenth Amendment to the

U. S. Constitution in that it does not give immunity against federal prosecution.- Jack v. Kansas, 199 U. S. 372, 26 Sup. Ct. R. (U. S.) 73.

Where a witness claims that an answer to a question will tend to incriminate him, it is not for the witness, but for the judge, to decide whether, under all the circumstances, such might be the effect and the witness entitled to the privilege of silence.-Foot v. Buchanan, 113 Fed. 156.

Where the witness declines to answer on the ground that his answers might tend to incriminate him, he is the sole judge whether he can safely answer, unless the court can perceive that his refusal is merely a fraudulent device to protect a third party, and that no possible danger can result to the witness from his answering the questions.- People ex rel. Lewisohn v. O'Brien, 176 N. Y. 253, 68 N. E. 353, affg. s. c. 81 App. Div. (N. Y.) 51, 80 N. Y. Supp. 816.

The witness, who knows what the court does not know, and what he cannot disclose without accusing himself, must judge for himself as to the effect of his answer, and if, to his mind, it may constitute a link in a chain of testimony, sufficient to convict him when other facts are shown, or to put him in jeopardy, or subject him to the hazard of a criminal charge, he may remain silent. The witness may be compelled to answer when he contumaciously refuses, or when it is perfectly clear and plain that he is mistaken, and that the answer cannot possibly injure him, or tend in any degree to subject him to the peril of prosecution. But the courts have recognized the impossibility in most cases of anticipating the effect of the answer.- People ex rel. Taylor v. Forbes, 143 N. Y. 219, 38 N. E. 303.

Where it is not so perfectly clear and manifest that the answer called for cannot incriminate, as to preclude all reasonable doubt or fair argument, the privilege must be recognized and protected.- Janvrin v. Scammon, 29 N. H. 280.

§ 21. Court proceedings; preferences.-All actions and proceedings under this act, and all actions and proceedings commenced or prosecuted by order of either commission, and all actions and proceedings to which either commission or the people of the state of New York may be parties, and in which any question arises under this act or under the railroad law, or under or concerning any order or action of the commission, shall be preferred over all other civil causes except election causes in all courts of the state of New York and shall be heard and determined in preference to all other civil business pending therein excepting election causes, irrespective

of position on the calendar. The same preference shall be granted upon application of counsel to the commission in any action or proceeding in which he may be allowed to intervene.

All actions to which the Interstate Commerce Commission is a party are preferred causes,- see Interst. Com. Act, § 16, post, Ap pendix B.

Power of Interstate Commerce Commission to bring suit in its own name for the enforcement of orders,- see Interst. Com. Act, § 16 post, Appendix B.

Provisions of New York Code of Civil Procedure relative to preferred causes,― see N. Y. Code Civ. Pro., §§ 789-793.

For similar provisions as to actions or proceedings by or against the former Board of Rapid Transit Railroad Commissioners,— see N. Y. Rap. Tr. Act, § 9, post, Appendix A.

Summary proceedings to enforce orders of Commission,- see post, §§ 57, 74.

A statute which denies to the court discretion in determining whether a case shall be preferred is unconstitutional.- Riglander v. Star Company, 98 App. Div. (N. Y.) 101, 90 N. Y. Supp. 772, affd. 181 N. Y. 531, 73 N. E. 131; Martin's Bank v. Amazonas Co., 98 App. Div. (N. Y.) 146, 90 N. Y. Supp. 734.

The court has power by special order to place an action brought by The City of New York upon the preferred calendar for a particular day even though the notice for a preference was insufficient.- City of New York v. Shack, 81 App. Div. (N. Y.) 575, 81 N. Y. Supp. 392.

In cases specified by N. Y. Code of Civil Procedure, § 791, subd. 1, 2, the attorney for either the state or the municipal corporation is entitled to have the case tried upon the day for which notice is given without regard to its position upon the calendar.- Sheerin v. City of New York, 74 App. Div. (N. Y.) 308, 77 N. Y. Supp. 511.

§ 22. Rehearing before commission;* [effect of application for a rehearing]. After an order has been made. by a commission any party interested therein may apply for a rehearing in respect to any matter determined therein, and the commission may grant and hold such a rehearing if in its judgment sufficient reason therefor be made to appear; if a rehearing shall be granted, the same shall be determined by the commission within thirty days after the same shall be finally submitted. An application for such a rehearing shall not excuse any common carrier, railroad corporation or street railroad corporation from complying with

or obeying any order or any requirement of any order of the commission, or operate in any manner to stay or postpone the enforcement thereof except as the commission may by order direct. If, after such rehearing and a consideration of the facts, including those arising since the making of the order, the commission shall be of opinion that the original order or any part thereof is in any respect unjust or unwarranted, the commission may abrogate, change or modify the same. An order made after any such rehearing abrogating, changing or modifying the original order shall have the same force and effect as an original order but shall not affect any right or the enforcement of any right arising from or by virtue of the original order.

Rehearing before Interstate Commerce Commission,- see Interst. Com. Act, § 16a, post, Appendix B.

[1] When a rehearing will be granted.

A section of the Interst. Com. Act, § 15, was amended, with no provision continuing the old section in force as to cases decided but still pending before the Interstate Commerce Commission.- Held, that the Commission should re-open such a case, permitting further testimony, and make an order under the new section.- Cattle Raisers' Assn. v. Mo. K. & T. R. Co., 12 Inters. Com. R. 5.

In a proper case, the Interstate Commerce Commission will dismiss a complaint without prejudice and with a proviso that the complainant may have a re-hearing upon asking for it.-Willson v. Rock Creek R. Co., 7 Inters. Com. R. 83.

The Interstate Commerce Commission is not precluded from rehearing a particular case and amending or modifying its original order therein, by the refusal of a Circuit Court of the United States to enforce such order against the carriers affected thereby, especially when the reasons assigned for such refusal do not relate to the principal question in controversy and are consistent with an approval of the amended or modified order.- Page v. D. L. & W. R. Co., 6 Inters. Com. R. 548.

To justify reopening and rehearing a case that has been decided, the petition must show prima facie the overlooking or misapprehension of material testimony, or obvious error of fact or law.- Myers v. Pa. Co., 2 Inters. Com. R. 544, 3 I. C. C. R. 130.

Words in brackets are not a part of section heading as enacted.-Ed.

The N. Y. Public Service Commission has the power to change a determination either of itself or of the former Board of Railroad Commissioners as to the method, specifications, etc., for the construction of a grade crossing.- Petition of Terminal Ry. of Buffalo. Decided by the N. Y. Public Service Commission for the Second District, May 4, 1908.

[2] When a rehearing will be denied.

The Interstate Commerce Commission made a final order in a proceeding, but nine months afterwards neither the complainants nor the Commission having instituted any suit to enforce the order, and the defendants not having complied therewith, the complainants ask to have the case reopened, the original order stricken from the records, and a new order made under the new phraseology of the section under which the original order was made, that section having been in the meantime amended. No error of law or facts in the making of the original order is alleged.- Held, that a rehearing should be denied.- Cattle Raisers' Assn. v. C. B. & Q. R. Co., 12 Inters. Com. R. 1.

Where the discrepancies alleged to exist between the facts originally found and those now proposed to be shown, do not sustain any controlling relation to the decision previously reached, they do not warrant reopening the case.- · Railroad Com. of Florida v. Savannah, F. & W. R. Co., 3 Inters. Com. R. 750, 5 I. C. C. R. 138.

A petition for a rehearing cannot be granted on a mere allegation of error in the findings of fact. The supporting affidavits must make at least a prima facie showing of such error.- Proctor v. C. H. & D. R. Co., 3 Inters. Com. R. 374, 4 I C. C R. 443.

An application for a rehearing, which offers no new testimony that can change the result, but only asks a reconsideration of the same facts and questions of law, will be denied.- Myers v. Pa. Co., 2 Inters. Com. R. 544, 3 I. C. C. R. 130.

Where a complaint has been determined upon pleadings and proofs, and no party thereto has applied for a rehearing, an application for a rehearing, made by others not parties, will not be granted.-In re Petition of Prod. Exch. of Toledo, 2 Inters. Com. R. 412, 2 I. C. C. R. 588.

The Interstate Commerce Commission will cheerfully and carefully examine and consider all applications for rehearings by a party to any proceeding before it who will point out errors he may think have been committed, either of law or fact, with view to their prompt correction; yet it will not in any proceeding direct a rehearing involving the expense to the parties of appearing before it for a reargument, unless satisfied that such reargument might have the effect of changing the de

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