The sun. [volume] (New York [N.Y.]) 1916-1920, 1918-12-28

, which he acts VI he acts within his
constitutional sphere as the Chief Ex-
ecutive and as Commander in Chief, he
Is accountable only to court OF i'm
parchment. There Is no authority In the
judiciary to review his political conduct.
lty given him by Congress he stands in
the same light as anybody else given
I similar authority"
In discussion with Judge Hand as
10 the distinction between general
delegation OF authority, as in the case of
the Allen Property Custodian, or on an
order Issued directly by the President.
Mr.. Hughes expressed the opinion that
any person who actually attempts to do
a thing which is alleged to interfere with
the property right OF citizen can be
compelled to show that It is done under
legal authority.
| Judge Hand said that while the acts
| or the President could be challenged SO
far as constitutional reasons are con-
cerned, II Is agreed that he cannot be
| made the object of a suit because he
cannot be compelled to execute his own
process against himself.
President Not a Defendant,
I'm this case you do not have to exc.
cute process against the President" eaid
me lawyer. You execute process against
these defendants. When the Secretary
OF war acts and is found to be without
authority. the process issues In the name
OF the President. II you are going on
tne theory that process issued after a
! lawful judgment will not be executed by
the president because he does not like It
! would like to know in what sense we
nave made the world safe for democracy
by winning this war.
| We might as well abolish our courts
tear up our Constitution. elect an en-
peror and establish a despotism-that
Is what 1t would amount to-
! Mr.. Hughes said that his client seeks
! merely to have the legality OF the con-
duct Of the defendants inquired into. II
u Is found that they have gone beyond
the unit OF their powers, they have no
shield in the President, he said He said
J mat Presidents always execise powers
: delegated by Congress through agents
ana that the prospect of the President
! appearing in court was one that would
| appeal only to a special assistant OF the
Attorney-General who was himself in
! court trying to excuse a wrong
Mr.. Hughes asserted that when the
| President omitted the cables when he
proclaimed the seizure of the telephone
and telegraph wires on August II was
an admission that no emergency affect
| ing the cables existed at a time when
the result of the war hung in the balance.
Judge Hand suggested that the con-
| tentions made by Mr. Hughes might APP
pear to justify the owners of railroads
| In questioning the legality of the Gov
eminent holding OF their property. The
| lawyer pointed out that the objection
raised by the Commercial Company was
to the seizure of its lines. II the OBJ
I Na..N L.,
after admitting the Legality of their
seizure, an entirely different situation
| would exist, he said
| Constitutional Point Raised.
Mr.. Huges argued in support OF the
| contention of the complainant that the
| seizure was in violation OF the consti-
! tutional provision against the taking OF
| property without due process of law and
Just compensation. This is the other OF
| the two principal issues raised by the
cable company.
He declared that the joint resolution
did not make adequate provision for
compensation. that the board named &c
fix the award was not an impartial one
| because OF the presence on II OF tn,
Postmaster General and that the righ
of appeal to the Court of Claims was ar
illusory one because the payment of any
! judgment awarded by that court was de
pendent upon actioE by Congress-
He pointed out the principal injury
| which the company has suffered In th'
absence OF actual interference with It.
affairs up to this time by the Govern
ment.
They say they are not taking title Il
this property" he exclaimed. That the,
are taking posse ssion, seizing. using
| NoIrl thae a
not have before? They are taking tn
profits Of our business That is what 1
amounts to and all that II amounts TO.
How Is that important here? This l.
| a going business II serves others besid
the Government. There is a continuou
inflow OF money. 1t is a very profltabi
business despite the fact that II has beer
highly competitive. Here are millions ii
money coming in as profits which the!
are seizing. How easy It would hav
been for them to let us have our money
They take our profits and send us to tn
Court Of Claims to conduct litigation 70
iust compensation. There has been mucl
talk OF impugning the good faith OF Con
gress. ] trust that I would be the las
man to do that, but say that this is no
justice"
Calls Answer Demurrer.
Mr.. Hughes pointed out that when TIL
railroads were taken over revolving
fund was provided as, source OF com
; pensation He explained that the mo
ton affected both the suits OF the Com
mercial Gable Company and of the Pa
cifc Cable Company, an allied corpora
ton. Clarence II. Mackay is presiden
OF both companies The allegations ar
| similar Mr.. Hughes called the mo
| ton to dismiss as in substance a de
murrer.
Mr.. Hughes spoke in answer TO NJ,
Harper and Mr.. McClennen who elab
GRATED the allegations in the motion pa
pers that the seizure was legal. i
answering Mr.. Hughes, Mr.. McClennel
said that counsel for the complainant
had In some respects misunderstood him
1T do not believe that anywhere in m.
: argument ! made a suggestion that tn
, President is above the law he said, 20
that he was authorized TO do an arbi
! trary act II the joint resolution wa
: constitutional II conferred only limite,
, | authority ! intended no suggestion
that 1t gave the President a right 4
do an arbitrary act. The authority wa
, limited TO the duration Of the presen
, war and to the existence of danger Z
the national security and defense"
Judge Hand asked n counsel though
that the reasonableness OF the Presi
dents judgment as to the existence of a.
emergency was open TO scrutiny.
: Mr.. McClennen said that the existenc
:, Of an emergency was left TO the Judg
: ment OF the President. He said that a
explanation OF the judgment that led I
thu saizura could come only from IN