The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1898-01-26


personally and officially, l respectfully
decline TO answer the present and similar
questions upon the ground of my con-
stitutional privilege as set forth above.
The replies of Messrs. Miller, Munson
and Potts were, in all material points,
like the above.
Chairman Caldwell announced that be-
cause of the Importance of the case,
it was the sense of the Commission that
n reasonable time be allowed each SIDE
for argument by counsel.
1t, was therefore agreed by counsel
Capt Clas A. Cook and Mr.. w. &.
Douglass for the Commission, and Col.
W. A. Henderson and Mr.. f. II. Bus
bee for the railroad--that each side have
one hour for argument.
AS the burden of proof was upon the
defendants to show cause why they
should not be adjuiged in contempt,
they had the opening and conclusion of
the argument. Mr.. Busbce spoke first.
Preliminary to HIS argument he asked
to be informed whom the counsel on the
other side represented.
"'rhe State and the Commission" said
Chairman Caldwell. Under the law the
Attorney General is counsel for the
Commission, but we have such informal
ton tbs leads us to believe that he is
also of counsel for the other party to
this action-the Southern Railway. We
have therefore asked the State no fur
niSh us with counsel in this matter"
With this Mr.. Busbee proceeded with
his argument. This case, he said, was
Important in that ii brings into question
the powers of the Railroad Commission
under the act creating it, and also be-
cause ii Involves the rights of the citi-
zen guaranteed 10 him by both the
State and Federal Constitutions.
Just what the Railroad Commission
was, Mr.. Busbee said, he did not know.
1t was first created as an administers
tive board. Then it was made a court
of record. In the Express case the Com
mission first came under judicial cog
nizance Oil \. G. 1867; in that case it
is declared that ii is a court having no
power to enforce its judgments. In
Justice Douglas recent decision, also
caldwell VS. Wison) it is held that the
Commission is different from criminal
court in that it has only administrative
and not judicial powers.
If drunken man were to enter the
court room at This moment and grossly
insult the court, the Commission would
have no power to adjudge him in con-
tempt OF course, he would be punish
ed by another court, and in a more
severe way for by section ~ of the
Railroad Commission act a remedy is
provided That section makes the re
fusal of q witness to testify both Il
contempt and mislemeanor, which is
punishable by fine or Imprisonment, or
both
If the defendants here had refused
to appear they could not have been in
dictable. 1t would have been a simple
case of contempt under section 16, and
not a misdemeanor, as it is if they
appear and refuse to testify.
IF a railroad violates section 4 of
fhe Railroad Commission act. then the
officer or employee who wilfuly partici-
pates in the violation is also guilty and
subject to indictment. Under the Inter
State Commerce act no common carrier
is indictable-the officers alone are i'm
dictable. Our law makes both the cor
poration and the persons who knowingly
participate in the misdemeanor indicta-
BILE.
Suppose the officers of a railroad in
North Carolina should direct an engineer
to run a freight train on Sunday and
he should do so, knowing as lle does
that it is contrary to law, would you
say that the engineer along with the
officer directing him is not guilty of a
violation Of the law?
But the language of the law is that
if the information may even tend to
incrininate the witness or to disclose the
source from which information may be
obtained to be used against him, he
may not be compelled to testify. Under
the act there is not shadow of protec
ton guaranteed the witness. All that
is necessary is for the answers here
given to be laid before the grand jury
to incriminate the witness.
I'm Boyd against the United States
116 L. S., man who was suspected of
violating the revenue law was protected
from producing his books and records
IL an answer could incriminate a wit
ness then neither the Commission nor
any other court can wiring an answer
from him.
Mr.. Douglass. on the other hand, con-
tended that when the Railroad Com
mission was constituted a court of
record it was thereby given power to
punish for contempt. He reviewed GER
tain questions asked the four defendants,
and which they declined to answer
These, he declared, could not in any
way have tended to criminate the wit
nesses or the railroad with which they
are connected. Unless the power to en-
force answers to such questions is given,
he said, the Railroad Commission act is
a foolish piece of legislation, and the
usefulness of the Commission at an end
The Railroad Commission act, he con-
tended, did not contemplate the punish
ment of persons but of common carriers.
This must be done by furnishing the Of
fcers and agents of the corporation.
IF these men are indictable at ali
they are indictable only under a common
law count. for aiding and abetting>. a
misdemeanor They come into court As
individuals and not as common carriers.
They have committed no offense indi-
vidHally as common carriers. If by
criminal negligence an accident happens
and kills number of persons the cor
pOration would be indictable but the in
dividuals would not be.
This is a very strange state of af-
fairs. Now the Southern Railway, speak
ing through the mouth of it's attorneys