The sun. [volume] (New York [N.Y.]) 1833-1916, 1897-06-15
THE COAL INV E%STIGATIUN.
BRIEF FOR THE DELAWARE and
HUDSON FILED YESTERDAY.

what David wiilco1. Sur. oIyphant's Counsel.
says OF the Cns~-The Act or the Legi.ia-
turo rs In ContrAvention or Established
Principles OF Iaw-1ts enforcement wou,d
No Conascatiou or Rights or Property.
In the proceedings by the Acknowledgement to
examine the Presidents Of the coal companies
under tho provisions OF the Antitrust acts, Da.
vid Wilcox. counsel for Robert NJ. olyphant,
the President Of the Delaware and Hudson Ca.
nal Company, hlcd with Judge Chester, at Al.
bany. yesterday, his brief in support Of tho mo-
ton to vacatc the order for examination OF tho
witnesses, in its COMPLETED form.
Speaking OF the matter. Mr.. Wilcox said yes.
tcrday: aside from tho failure to show any
facts warranting the order, the act upon which
the proceedings were based is subject to radical
constitutional objections. In u penal action 1t
seeks TO subject tho citizen to n practically un.
limited examination by the Attorney General
into his private affairs, including inspection of
his books and papers, with a provision that the
citizen shall not be excused from tcstifying on
the ground that his testimony may tend TO con-
vict him Of a violation OF the provisions
OF the act and without securing him i'm
niunity from prosecution regarding the sub
ject matter OF his testimony. This sort Of pro-
ceeding may be fifty characterized by using the
language OF Judge Bradley in Boyd vs.. United
States regarding a much less drastic proceed
ing: Any compulsory discovery by extorting
i the party's oath, or compelling the production
o. his private books and papers, to convict him
Of crime. or to forfeit his property. is contrary
to the principles of a free government. 1t is
abhorrent to the instincts Of an E~nglishman; 1t
Ia abhorrcnt to the instincts OF an American. II
may suit the purposes Of dcspotic power. but 1t
cannot abide the pure atmosphere OF political
The constitutional guarantees Of liberty and
property secure TO all persons the right to pur-
as they may see ft, and to make such contracts
as may be incidental thereto. Tho Legislature
r rai Po oniy SO 20 far ,% as aay nf be ]reSnire Sp by the fee Sc,
cucity or welfare of society. or, as it is called, in
the exercise Of the police power: In the present
that a contract or arrangement may restrain or
prevent competition necessarily renders it
prejudicial to the security or welfare of society.
the Legislature has no power to prohibit the
contract or arrangement because 1t possesses
I'm I'LL the Court of Kings Bench held that
the mere fact that a contract or arrangement
might in some degree restrain or pre- vent compc-
tition did not render it prejudicial to the secur-
iy or welfare Of society. Ever since then, the
and viEor. notably by the Court OF Appeals OF
this State and by The Supreme Court of the
United States. II is impossible to escape from
ing contracts or arrangements upon that ground,
was not exercising. the police power-it was not
Of society. The action OF the Legislature in the
premises was, therefore. merely an effort to de-
prive the citizen of rights OF liberty and prop.
erty which he had enjoyed for centuries.
The American system OF written %constitu-
tons was devised for the precise purpose OF pro-
tecting the people against action by their Legis-
laturcs. which might be inspired by passing pop
ular clamor. but would be detrimental to the
permanent wclfars OF the State. Nothing was
more carefully guarded than the rights OF in
dividual liberty and property. The guarantees
thereof are so firmly embedded in the State and
Federal Constitutions that they Will doubtless
prove effective to protect liberty and property
against attacks which have little basis save the
eNigencies OF sensational journalism. The per.
manence OF our system Of government depends,
moreover. upon these limitations on the arbi.
trary use Of power, which have been in course
OF development since the days OF Magma Charta-
And 50, while the present proceeding is not
OF great consequence to the coal companies
particularly, 1t Is of the highest Importance TO
asst has been laid down so often before-the
rule that their liberty and property are not depen'
dent merely upon the arbitrary behests OF the
Legislature: that where rights of pro
perty are admitted to exist the Legfsla
tnre cannot say they shall exist nc
by mere legislative fat their property cannot
be shorn OF its substantial value and theiI
liberty cannot be DESTROYED by turning them
over to an administrative officer for III &c
examination. All who understand the funda
mental characteristics of the American system
OF written constitutional government. and who
desire its preservation in full vigur. must wish
that this proceeding shall result in one more
demonstration Of its efficiency to protect the
rights OF liberty and property. That this will IL
the ultimate result regarding this statute thert
can be no question: