New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1906-03-13
WITNESSES NOT IMMUNE
TRUST CASES DECISIONS.
Supreme Court also SustdiHS Orders
to Produce Books.

| washington March 1.-THE United States SUI
| preme Court to-day. In two cases anectlne inc
| rights of witnesses and the production or DOCKS VI
corporations in actions under the ANTITRUST a"'
| r,Iad against the ueas set up by the defendants
| and sustained the orders for the production OF
| books and the requirement that the witnesses
| testify. The two cases we're those commonly
known as the Tobacco Trust and Western Paper
| Trust suits.
The titles of the Tobacco Trust cases were: Ed
| win F. Hale agt United States Marshal HenKel'
! and William H. McAllister agt. Henkel. and both
cases came on appeals from the United States Cir
cult Court for the Southern District OF New-York-
These involved the broad question OF the
| right of federal grand jury to compel witnesses
| to answer questions. and this question mas re-
Gently arisen many of the federal courts the de-
cision in this has been awaited with mulch IN
terest. The present proceeding had it's origin In
| suit of the government against the American TO-
| bacco Company, known az the TOBACCO 1IuSt'
| the McAndrews & Forbes Company, and the I'M
perial Tobacco Company, under the antitrust law
In the Circuit Court of the United States for the
| Southern District of New-York. Hale and Me-
Aliister are officers OF tobacco companies, and re-
| fused TO answer questions or to produce their
| books.
They were committed for contempt, and sought
writs Of habeas corpus. They attacked the juris-
| dlction of the grand jury and contended that at
| the time they we're before the jury there was no
action pending against the tobacco companies Ihe
turyys right to compel answers was questioned on
the ground that in the investigation 1t was hlahihs
there was specific charge against any parucuiaf
person They also attacked the constitutionallty
of the act of February %. 1903 granting immunity
to witnesses in antitrust cases -,
Justice Brown, who delivered the opinion sa'u
that the cases raised two issues over dlnerehl Pr
visions of the Constitution the 1rst llNoiVi"s '
immunity of witnesses from oral examination ana
the legality OF his action In refusing 10
produce the documents called for by the subpoena
duces tecum.
SPECIFIC CHANGES UNNECESSARY.
Taking up the first division of the case the Jus
tice referred to the plea for immunity on the
ground. first that specific charge was pendins
before the grand jury; and. second that the an
swers would tend to incrimlnate the witness ana
with reference TO the plea Of mo charge said;
While has arisen in this in the hGh
in favor Of the theory that the grand fury may act
upon information received by them from the exami-
Of Witnesses without formal Sqna bs or
Il ny ander practice
IN this n c99n 9 6 h S Se or
presentment formally drawn up, but that the grand
or upon the examination Of witnesses to inquire
for themselves whether crime eognisahle by the
inyestgation may be subsequently embodied IN an
is quite sufficient to apprise them Of the names OK
the parties with respect to whom they will be
the charge against them.
On the point of immunity because OF tendency
to standardization the opinion expressed the view
that an inquiry by grand jury is proceeding
under the witness immunity act of 1908, and added
1t Is not declared daFfs that witness not be
his reputation probity or even tend to disgrace
him. but the line is drawn at testimony that may
UNAFFECTED BY the immunity Statute Hi It Wond
put II %lthin the power OF the witness TO be his
him, and would Justify him in refusing to answer
clearly appeared that the immunity was not set up
In good faith.
The Justice admitted that the immunity statute
might protect individuals. but added that II was
not intended to serve that office for corporations
He said;
agsinst by the sherman antitrust can ordi-
thereto in the person of their agents or employers
The privileges claimed would practically nudity the
Tor the Legislature to declare these combinations
upon the subject?
The second branch of the case related to the
non-production by the witness of the books and
papers called for by the subpoena Mr. Hale put
his refusal the ground that it was in1possibe
to collect the papers in the time allowed that
he was under no obligation 10 produce them and
that they might tend to incriminate him.
NO IMMUNITY FOR BOOKS.
The justice said that If time had been asked It
would doubtless have been granted. The second
objection was considered in it's relation n tba
Fourth Amendment to the Constitution and II was
held that 1t was competent to require the attend |
ance and testimony of witnesses and the produc- |
ton of books, papers. etc. relating TO the matter
under inquiry. Justice Brown said:
IL, If whenever an officer or employee of corpora
witness he could refuse to produce the books and
documents of such corporation upon the ground
that they would incriminate the corporation itself
II would result in the failure of a large number
OF cases where the illegal combination was deter
I5lnaple only upon the examination OF such papers
But conceding that the witness was an officer Of |
investigation hat he
ton with respect TO the production of its books
clear distinction in this particular 5etWe snsr an Is
4tvdual r ana corporation. and that the latter
papers Tor an examination at the suit of the state |
citizen but the corporation is creatJre ~ 3ba
state; II is presumed to be Incorporated FOR The
law. 1t make no contract not authorized ~ y |
us eharIer us rights 10 act as corporation are
OF its creation. There is a reserved right in tSs
out whether has exceeded its powers ana wind ma
be strange anomaly mold that state bsy }ne
franchises could in the exercises Of its saar
egnty' inquire how these franchises had been EN-
demand the production OF the corporate books and |
papers for that purpose anu
Justice Brown added that it was not tho d.s,
of the court to be understood refusing 10 nrota+
a corporation against unreasonable searches ord
seizures He also expressed the opinion that an
order for the production OF books and papers might
constitute an unreasonable search and seizure
under the Fourth and Fifth amendments srd 80
that the order for the production OF napers In
Hales case was entirely too sweeping. Yet he
held that this point does not involve the merits of
the case and therefore affirmed the decision =,
the Circuit Court -
Justices Harlan and McKenna concurred in the
result, but delivered opinions basnr tbeir cor
illusions on somewhat different erourds +bo, 80 |
taken by Justice Brown in the controlling, oninioD
The Chler justice and Justice Brewer dssented