For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
The Municipal Court of the Township of Weehawken adjudged the appellants Alfred C. Tanner and Fred Charles Hill guilty of contempt for their refusal in open court to answer questions as witnesses; they appealed to the Appellate Division and the causes have been certified by this court on its own motion.
The Board of Health of the Township of Weehawken caused the filing of complaints in the municipal court charging the defendant New York Central Railroad Company with violation
of Weehawken's air pollution ordinance. The jurisdiction of the municipal court to entertain these complaints is sustained in the companion case of Board of Health of the Township of Weehawken v. New York Central Railroad Company, 10 N.J. 294 (1952). In the course of the proceedings in the municipal court, the board served subpoenas duces tecum upon Alfred C. Tanner and Fred Charles Hill, employees of the railroad. Tanner and Hill appeared in court and were duly sworn as witnesses. After answering several questions Tanner declined to answer a question as to whether he was "familiar with the tunnel which starts at Weehawken and ends in North Bergen." In response to the court's inquiry as to why he declined to answer he said "On the advice of my counsel." Thereupon the railroad's counsel stated that he had advised the witness not to answer and moved to terminate the interrogation on the ground that the witness could invoke the privilege against self-incrimination on behalf of his employer, the railroad corporation. The motion was not granted and the interrogation of the witness continued with many refusals to answer questions on the advice of counsel. The interrogation of Hill followed the same course. The court reserved decision as to whether the witnesses were guilty of contempt, and requested briefs. At a later session the court announced its conclusion that they should be directed to answer and then addressed individual questions in open court to Tanner and Hill. They refused to answer on the advice of counsel and were immediately adjudged in contempt and fined $200 each.
The first point advanced by the appellants in support of their appeal is that a corporate defendant in a criminal proceeding may, through its employee witnesses, claim the benefit of the privilege against self-incrimination; they concede that as individuals they were in no danger of incrimination and did not as such assert the privilege. We shall
meet this point directly, passing issues as to whether the proceeding was criminal in nature or the evidence sought incriminating (cf. Board of Health of Township of Weehawken v. New York Central Railroad Company, supra) and whether the manner in which the refusals to answer were brought about was proper. See Vineland v. Maretti, 93 N.J. Eq. 513, 521 (Ch. 1922); State v. Mohr, 99 N.J.L. 124, 129 (E. & A. 1923).
Dean Wigmore has extensively reviewed the history, policy and limits of the privilege against self-incrimination. 8 Wigmore, Evidence (3 d ed. 1940), pp. 276, 304, 342. See also Morgan, The Privilege Against Self-Incrimination, 34 Minn. L. Rev. 1 (1949). He points out that almost all courts have held that the privilege may not be invoked by a corporation; he attributes this result largely to the fact that the sentiment of fundamental fairness upon which the privilege is partially based "applies only between man and man." More recently the United States Supreme Court similarly stressed that the privilege is essentially a personal one, applying only to natural individuals and growing out of our high concepts of the dignity of all human beings. United States of America v. White, 322 U.S. 694, 698, 64 S. Ct. 1248, 88 L. Ed. 1542, 1546 (1944). Citing the leading cases of Hale v. Henkel, 201 U.S. 43, 26 S. Ct. 370, 50 L. Ed. 652 (1906), and Wilson v. United States, 221 U.S. 361, 31 S. Ct. 538, 55 L. Ed. 771 (1911) the Supreme Court stated comprehensively that the privilege "cannot be utilized by or on behalf of any organization such as a corporation."
Unlike the Federal Constitution (5th Amendment) our State Constitution contains no express provision embodying the privilege against self-incrimination. In re Vince, 2 N.J. 443, 449 (1949). However, our courts have long recognized that at common law "every individual is clothed for his own protection" with the privilege. See State v. Zdanowicz, 69 N.J.L. 619, 622 (E. & A. 1903); Fries v. Brugler, 12 N.J.L. 79, 82 (Sup. Ct. 1830). Cf. State v. Auld, 2 N.J. 426, 436 (1949); State v. Alexander, 7 N.J. 585, 591
(1951). Our Legislature has codified this common law rule in R.S. 2:97-7 ...