The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-03-13
TRUST OFFICERS IN CONTEMPT
TOBACCO AND PAPER MEN MUST
APPEAR AND TESTIFY.
The u. 3. Supreme Court Holds That the
immunity Ruie Applies to individuals
Only and Does Not Extend 10 Corpora.
lions That are Created by the state.

tlons hat are Created by the state.
WASHINGTON. March 12.-Under the de-
cisions of the Supreme Court to-day the
pending prosecutions OF the so-called Paper
and Sugar trusts for alleged violation OF
the Sherman antitrust law, which have
been suspended through the refusal Of their
officers to testify or to produce the books
Of the companies, can now proceed. Inc
officers of these corporations, the court
Solids, must give the testimony demanded.
they having no rights Of Immunity from
testifying regarding the afTai rs of their
corporations, whore the ofic n them
selves are exempt from punishment,
Incidentally the court lays down a new
principle as to the rights of corporations,
which may IA We a far reaching effect, by
holding that such bodies, willie regarded
under the law as citizens, did not have the
came rights as individuals and that the State
creating them, or, where questions OF inter-
state are concerned, the general
Government, may exercise sovereign author
fly in matters relating to violations OF law
and inquire into their affairs by calling
for their books, &c.
= The court also condemned az too broad
the orders for the production OF books and
a pers which were not shown to be essentia
to the case. this being a violation Of the con-
Rtitutional right against unreasonable search
and seizure. The court intimates, however.
that this constitutional right might be taken
away as far as concerns corporations trans
acting interstate commerce. il Congress
should pass an act authorizing the examina-
ton of the books OF such corporations.
The so-called immunity cases decided to-
day numbered ten in all. The question OF
immunity from testifying was concerned in
each, and some also contained the question
Of producing books and papers. Two Of
them were appeals taken from the Federal
court at New York by Edwin F. Hale and
William H. McAllister, officers Of the Ameri-
can Tobacco Company, who in proceedings
under the Sherman antitrust act declined
to give testimony, as it might tend to in
criminate them, or TO produce the COM
pany's books and papers, on the ground
that it constituted unreasonable search.
The opinion on the latter phase Of the
case was by Justice Brown, and Chief Justice
Fuller and Justice Brewer dissented. Justice
McKenna, who delivered the practically
unanimous opinion on the question Of
compelling testimony set forth in the paper
trust cases, also dissented in some p~articu-
lars as to the conclusion regarding the
broadness Of the order for the production
OF books, and Justice Harlan had a con-
curing opinion not quite agreeing with
the others with regard to the giving of testi-
mony.
There were different modes OF procedure
In the eight cases brought by the officers
of the General Paper Company. Five Of
them appeals from the orders of the United
States Circuit Court for the Eastern Dis
trict of Wisconsin, directing the officers of
that company to give testimony and pro-
duce it's books, were dismissed for want Of
jurisdiction, and two brought in Mime
sofa, where some Of the constituent COM
panies are located. the judg ment of the
court there, adjudging the whine sses in
contempt for refusing TO testify, was af-
f1Tmed.
Various phases Of the question Of inn
munity were raised in these and in the
Tobacco cases as well, including the mater
iality Of the testimony desired and that
the discriminatory evidence was not shown
to be in their possession. To the latter
Justice Mckenna said:
This contention is untenable. The ground
Of 1t is that the possession of the Witnesses
was not personal. but was that Of the re-
spective corporations OF which they were
officers. Granting this TO be so and that the
witnesses could have set up whatever privi-
leges the corporations had, nevertheless
they had the custody tactual possession
Of the books and were summoned from neces-
sity as representing the corporations. 1t
Ia hardly necessary TO observe that the wit
nesses had all the possession human beings
could have had or can have. and il the obiec-
ton is to prevail the books of a corporation
can be withdrawn from the rea oh OF com
pulsory process. II Il Is as useless as attempt
ing to demonstrate that twice two make four
to say that a corporation can have possession
of nothing except by the human beings who
are its officers. and it is to them. not the in
tangible being they represent and act for,
that the law directs its process Of subpoena
and must procure its evidence.
Justice Brown in the Tobacco Trust cases,
delivered the majority opinion on the ques-
ton OF producing books and papers, which
also controlled the like question in the Paper
Trust cases. He also disposed Of the OBJ
lection that the proceeding at New York
was not such as contemplated by law, in
that there was no regular presentment by
the Grand Jury, which he dismissed with
the suggestion that IL was a move one in
criminal procedure, the Grand Jury having
the right to investigate upon even probable
AS to the contention that the immunity
etatute applied also to the corporation
of which the witness was the agent and
representative Justice Brown said that 1t
was not 30 designed. He added:
The right of a person under the Fifth Amend
ment TO refuse to incriminate himself is purely
O personal privilege Of the witness. 1t was
never intended to permit him to plead the
fact that some third person might be in
eliminated by his testimony. even though he
were the agent Of such person. A priv ilege
so extensive might be used to put a stop
to the exam nation of every witness who
was called upon to testify before the Grand
Jury with regard to the doings OF business
of his principal, whether such principal were
an individual or a corporation. The Ques-
ton whether a corporation is a person with
in the meaning Of this amendment really
does not arise. except perhaps where a cor
poration is called upon TO answer a bill of
discovery. since it can only be heard by oral
evidence in the person OF some one Of its
agents or employees.
The amendment Is limited to a person
who shall be compelled in any criminal cases
to- be a witness against himself and II he
cannot set up the privilege for a third person
he certainlv cannot set I'M the Drlyile0e for n