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Co. v.

company. They stopped the trains at Collingwood, striking employees had been discharged by the detained them there, and thus prevented the prop-company, and that the acts of violence took place erty of the plaintiff from being transported to its after they had ceased to be employees. In that replace of destination, in the same manner as the con- spect is is distinguishable from the case under conductor stopped the train in the case of Panama sideration." Railroad Company, and prevented the transportation of the passenger. Under the authority of that In State v. Nebraska Telephone Co., Nebraska Sucase they were servants acting within the scope of preme Court, January 21, 1885, 22 N. W. Rep. 237, it their employment. This case is cited with ap was held that telephone companies being common proval in the case of Mott v. Consumers' Ice Co., 73 carriers of news, all persons are entitled to equal faN. Y. 543. In the case of the Indianapolis and St. cilities in the employment of the benefits to be deLouis Railroad Co. v. Juntegen (manuscript opinion rived from the use of the telephone; and where no of the Appellate Court of the Third District of good reason is assigned for a refusal by a telephone Illinois), the action was for damages occasioned at company to furnish a telephone instrument to a perthe same time and by the same strike which is the son who desires to become a subscriber, and ten · subject of consideration in this action. The court (ers a full compliance with all the rules established in that case held that the plaintiff was not entitled for other subscribers, a writ of mandamus will issue to recover. It however placed its decision upon to compel such company to furnish such person the ground that it appeared from the evidence with the necessary instruments. The court said: upon the trial that but a small portion of the strik 6. The demands of the commerce of the present day ers had been in the emplɔy of the defendant's com make the telephone a necessity. All people, upon pany; that they had left their employment and complying with the reasonable rules and demands joined the strike, and that the great body of strik- of the owners of the commodity – patented as it is ers were men not in the employ of the company. - should have the benefits of the The evidence in the case under consideration ap

The wires of respondent pass the office of pears to be quite different upon this branch, mak the relator. Its posts are planted in the street in ing it a proper question for the jury. In the case front of his door. In the very nature of things, no of the Pittsburg, Fort Wayne and Chicago Railroall other wires or posts will be placed there while

Hazen, 84 Ill. 36; S. C., 25 Am. Rep. 422, those of respondent remain. The relator never can the action was for damages occasioned in conse be supplied with this new element of commerce, so quence of a strike. The rule was there stated as necessary in the prosecution of all kinds of business, follows: "From the delay resulting from the re unless supplied by the respondent. He has tenfusal of the employees of the company to do duty, dered to it all the money required by it from its the company is undoubtedly responsible. For de other subscribers in Lincoln for putting in an inlay resulting solely from the lawless violence of strument. He has proven, and it is conceded by men not in the employment of the company, the respondent, that he is able, financially, to meet all company is not responsible eren though the men the payments whioh may become due in the future. whose violence caused the delay had but a short It is shown that his office can be supplied with less time before been employed by the company. In expense and trouble to respondent than many oththe case of the Pittsbury, Cincinnati and St. Louis ers which are furnished by it. No reason can be asRailroad Co. v. IIollowell, 65 Ind. 188; S. C., 32 signed wiy respondent should not furnish the reAm. Rep. 63, the action was for damages oc- quired instruments, except that it does not want to. casioned by the breach of an agreement to ship live There could, and doubtless does exist in many stock, and such brcach was occasioned by a strike cases, suflicient reason for failing to comply with among the employees of the company. The ques such a demand, but they are not shown to exist in tion was raised upon a demurrer to the pleading.

this case.

It is known to be essential to the busiThe majority of the court held the pleading insuffi ness interests of relator that his office be furnished cient, but differed in reference to its construction with a telephone. The value of such property is of and not in reference to the rule of law course conceded by respondent, but by its attitude, applicable. The rule as there stated is, that it says it will destroy those interests and give to whether the persons causing the delay complained some one in the same business, who may have been of were the employees of the defendant or not, was more friendly, this advantage over him. It is said a question of fact for trial, and that where the de- by respondent that it has public telephone stations lay was caused by a strike or mol) composed solely in Lincoln, some of which are near relator's office, of the employees of the railroad company, the com and that he is entitled to and may use such telepany will not be excused from carrying the freight phone to its full extent by coming there; that like in accordance with its contract. This case appears the telegraph, it is bound to send the messages of to be in point, and in accordance with the weight relator, but it can as well do it from these public of authority in this State. We do not regard it as stations; that it is willing to do so, and that is all in conflict with the case of the Pittsburg, Fort that can be required of it. Were it true that reWayne and Chicago Railroud ('o. v. IIizen, supra. spondent bail not undertaken to supply a public deIn that case the evidence tended to show that the mand beyond that undertaken by the telegraph,



then its obligations would extend no further. But before its production could be insisted on. I adas the telegraph has undertaken to the public to mit that in such a case much reliance must be send dispatches from its offices, so the telephone | placed on the declaration of the president, and I has undertaken with the public to send messages do think that a privilege does exist to withhold prifrom its instruments, one of which it proposes to vate letters of a certain description. The reason is supply to each person or interest requiring it, if this: letters to the president in his private characconditions are reasonably favorable. This is the ter are often written to him in consequence of his basis upon which it proposes to operate -- the de- public character, and may relate to public concerns. mand which it proposes to supply. It has so Such a letter, though it be a private vne, seems to parsumed and undertaken to the public. That the take of the character of an official paper, and to be telephone, by the necessities of commerce and pub- such as ought not on light ground to be forced into lic use, has become a public servant, a factor in the public view. Yet it is a very serious thing, if such commerce of the nation, and of a great portion of a letter should contain any information material to the civilized world, cannot be questioned. It is to the defense, to withhold from the accused the all intents and purposes a part of the telegraphic power of making use of it. It is a very serious system of the country, and in so far as it has been thing to proceed to trial under such circumstances. introduced for public use, and has been undertaken I cannot precisely lay down any general rule for by the respondent, so far shoull the respondent be such a case. Perhaps the court ought to consider held to the same obligation as the telegraph and the reasons which would induce the president to other public servants. It has assumed the responsi- refuse to exhibit such a letter as conclusive on it, bilities of a common carrier of news. It has and unless such letter could be showu to be absolutely must be held to have taken its place by the side of necessary in the defense. The president may himthe telegraph of such common carrier. The views self state the particular reason which may have inherein expressed are not new.” Citing Pensacola duced him to withhold a paper, and the court Tel. Co. v. W. U. Tel. Co., 96 U. S. 9; State v. Bell would unquestionably allow their full force to these Telephone Co., 36 Ohio St. 296; S. C., 38 Am. Rep.

At the same time the court could not re583, and note, 587.

fuse to pay proper attention to the affidavit of the accused. But on objections being made by the

president to the production of a paper the court RULES AS TO THE PRIVILEGES OF WIT

would not proceed further in the case without such NESSES.

an affidavit as would clearly show the paper to be essential to the justice of the case. On the present

occasion the court would willingly hear further tesRULE. An officer of the government is not compella- timony on the materiality of the paper required, ble to give evidence (a) or produce docuinents (b) but that is not offered. In no case of this kind which, in his opinion, it is for the public interest to keep would a court be required to proceed against the secret (1); nor in any case while he is oficially en

president as against an ordinary individual. The gaged in the duties of his office (c).

oljections to such a course are so strong and so obThe first judicial expression and enforcement of vious that all must acknowledge them. But to this rule is believed to have taken place in the cele

induce the court to take any definitive and decisive brated American State trial of Aaron Burr (2), step with respect to the prosecution, founded on Chief Justice Marshall saying: “That the president the refusal of the president to exhibit a paper, for of the United States may be subpanaed and exam

reasons stated by himself, the materiality of that ined as a witness, and required to produce any pa

paper ought to be shown. In this case however jer in his possession is not controverted. I cannot the president has assignell no reason whatever for however on this point go the whole length for withholding the paper called for. The propriety which counsel here contended. The president, al of withholding it must he decided by himself, not thcugh subject to the general rules which apply to

by another for him. Of the weight of the reasons others, may have sufficient motives for declining to

for and against producing it he is himself the judge. produce a particular paper, and those motives may It is their operation on his mind, not on the mind be such as to restrain the court from enforcing its

of others, which must be respected by the court. production. I do not think precisely with the They must therefore be approved by himself, and gentlemen on either side. I can readily conceive not be the mere suggestions of another to him. It that the president might receive a letter which it does not even appear to the court that the presiwouid be improper to exhibit in public, because of

dent does object to the production of any part of the manifest inconvenience of its exposure. The

this letter. The objection, and the reasons in supoccasion for demanding it ought in such a case to port of the objection, proceed from the attorney be very strong, and to be fully shown to the court

himself, and are not understood to emanate from

the president. IIe submits it to the discretion of (1) Marbury v Madison, 1 Cranch. 137 (1803); Totten v.

the attorney. Of course it is to be understood that United States, 92 U. S. 103 (1875); R. v. fiardy, 24 How. St. Tr. 199; R. v. Watson, 32 id. 102.

he has no objections to the production of the whole (2) Burr's Trial, vol. 2, page 535.

is the attorney has not. Had the president when

the case.

he transmitted it subjected it to certain restrictions, may arrive at a conclusion different from that of and stated that in his judgment the public interest the governor, and if they do it will be their duty requires certain parts of it to be kept secret, and to decide according to their own views, as the govhad accordingly made a reservation of them, all ernor in his action must be governed exclusively by proper respect would have been paid to it, but he his views The governor cannot be examined as has made no such reservation. As to the use to be to his reasons for not signing the bill, nor as to his made of the letter it is impossible that cither the action in any respect regarding it. But there is no court or the attorney can know in what manner it reasou why he should not be called upon to testify is intended to be used. The declarations therefore as to the time it was delivered to him; that is a made upon that subject can have no weight. bare fact that includes no action on his part. To Neitlier can any argument on its materiality or im- this extent at least, I am of opinion that he is materiality drawn from the supposed contents of the bound to appear and testify." parts in question. The only ground laid for the In case 3 it was said: " We must first undercourt to act upon is the affidavit of the accus

cused, stand who the persons are against whom the court and from that the court is induced to order that has directed its attachment, and for what purpose the paper be produced, or the cause be continued. they have been subparnaed. They are the governor In regard to the secrecy of these parts which it is of Pennsylvania, the secretary of the Commonstated are improper to give out to the world the wealtlı, the adjutant-general, chief executive officers court will take any order that may be necessary. 1 of the executive department of the State governdo not think that the accused ought to be prohil). inent, and two officers of the National Guard; the ited from seeing the letter, but if it should be latter subordinates acting under the orders of the thought proper I will order that no copy of it be former. The purpose for which these officers are taken for public exhibition, and that no use shall subparnied is, that the grand jury may be put into be made of it but what is necessarily attached to possession of any information that they may be

After the accused has seen it it will yet possessed of, or that may be within the power of be a question whether it shall go to the jury or not. their several departments concerning the military That question cannot be decided now, because the or other means used by them in the suppression of court cannot say whether those particular pilssiiges the late riots in the city of Pittsburgh. It will be are of the nature which are specified. All that the observed that these persons are subpænaed for the court can do is to order that no copy shall be taken, purpose of compelling a revelation of such things and if it is necessary to debate it in public those as have come to their knowledge in their official who take notes may be directed not to insert capacities, and which strictly belong to their sevany part of the arguments on that subject. I be-eral departments as oflicers of the Commonwealth. lieve, mysell, that a great deal of the suspicion This is clearly set out in the answer by the attorneywhich has been excited will be diminished by the general to the application for the attachment, and exhibition of this paper."

there has been no denial thereof upon the argument

before us. In order to simplify matters we may ILLUSTRATIONS.

treat this case just as though the process, first and (A.)

last, were against the governor alone; for if he is 1. The governor of a State is summoned to exempt from attachment because of his privilege testify as to his reasons for not signing an act of his immunity protects his subordinates and agents. the Legislature, and as to his actions otherwise in the general principle is that whenever the law respect to it. IIe can legally refuse to answer is). vests any person with the power to ilo an act, at

2. The governor of a State is summoned to tes the same time constituting him a judge of the evitisy as to the time an act was delivered to him for dence on which the act may be done, and contemhis approval. IIe cannot legally refuse to answer (4). plating the employment of agents through whom

3. Certain riots in the State being under investi- the act is to be accomplished, such person is gation by the grand jury, a subpoena is issued to clothed with discretionary powers, and is quoud hoc the governor and his officers, requiring them to at a judge. His mandates to his legal agents, on his tend before that body, and testify to f'acts within declaring the event to have happened, will be a their knowledge as to the origin and continuance protection to those agents. Punderheydlen v. Young, of the riots. The governor and his officers decline | 11 Johns. 158, per Spencer, J. It follows, if the so to testify, on the ground that such disclosures governor, as supreme executive and as commanderare against the public interest. This excuse is le-in-chief of the army of the ('ommonwealth, is gal, and they cannot be compelled to testify (5).

charged with the duty of suppressing domestic inIn cases 1 and 2 it was said: “The time when it surrections, he must be the judge of the necessity was delivered to the governor may be a very mate- requiring the exercise of the powers with which he rial fact in determining that question. That is a

is clotheil, and his subordinates who are employed proper question for the courts to determine. They to render these powers eflicient, and to produce the

legitimate results of their exercise, can be account(3) Thompson v. German Valley R. Co., 2. N. J. E. able to none but him. In like manner, if he is con111 (1871). (4) Id.

stituted the judge of what things, knowledge or (5) Appeal of Hartranft, 85 Pa. St. 442 (1877).

information coming into his clep:rtment through

himself, personally or from his subordinates, may done within its own department, and what of its or may not be revealed, then such subordinates own doings and communications should or not without his permission cannot be compelled to dis be kept secret, and that with it, in the exercise of close in court any such matters or information. these constitutional powers, the courts have no What then are the duties, powers and privileges of more right to interfere than has the executive, unthe governor? In the language of the Constitution, der like conditions, to interfere with the courts. article 4, section 2, “the supreme executive power In the case of Oliver v. Warmouth, 22 La. 1, it was shall be vested in the governor, who shall take care held (per Taliafero, J.), that under the division that the laws be faithfully executed.” Also same of powers, as laid down in the Federal and article, section 7: “The governor shall be com State Constitutions, the judiciary department has mander-in-chief of the army and navy of the Com no jurisdiction over or right to interfere with the monwealth, and of the militia, except when they independent action of the chief executive in the shall be called into the actual service of the United functions of his office, even though the act he is reStates.” He is also invested with the appointing quired to perform be purely ministerial. This is and pardoning powers; the power to convene the putting the matter on very high grounds, for in Legislature in cases of emergency, and to approve such case no other officer would be exempt from the or veto bills submitted to him by the General As- mandatory power of the judiciary. No case could sembly. It is scarcely conceivable that a man more forcibly exhibit the extreme reluctance of could be more completely invested with the su courts to interfere with the functions of the supreme power and dignity of a free people. Observe, preme executive, for the hypothesis put is the rethe supreme exccutive poirer is vested in the

governor, fusal of the governor to perform a duty cast upon and he is chargel with the fithrul execution of the him by law of a character strictly ministerial. We laur, and for the accomplishment of this purpose he think however that the ground upon which this deis made commander-in-chief of the army, navy and cision st is substantial; for as the learned jusmilitia of the State. Who then shall assume the tice well argued, the difficulty arises in the attempt power of the people, and call this magistrate to an to establish a distinction between ministerial and account for that which he has done in discharge of discretionary acts as applied to the governor, and his constitutional duties? If he is not the judge then to conclude that the former may be enforced of when and how these duties are to be performed, by judicial decree; it is objected however that the who is? Where does the Court of Quarter Sessions, doctrine is unsound in this, that it gives to the juor any other court, get the power to call this man diciary the large discretion of determining the before it, and compel him to answer for the manner character of all acts to be performed by the chief in which he has discharged his constitutional func- executive; that this would infringe his right to use tions as executor of the laws and commander-in his own discretion in determining the very same chief of the militia of the Commonwealth? For it question; that he must necessarily have the unconcertainly is a logical sequence that if the governor ditional power of deciding what acts his duties recan be compelled to reveal the means used to ac quire him to perform, otherwise his functions are complish a given act he can also be compelled to trammelled, and the executive branch of the govanswer for the manner of accomplishing such act. ernment is made subservient to the judiciary. The If the Court of Quarter Sessions of illegheny principle enunciated in the above stated case applies county can shut him up in prison for refusing to with greater force to what we now have under conappear before it and reveal the method and means

sideration; for if the governor's discretion may not used by him to execute the laws and suppress be interfered with in a matter purely ministerial, domestic violence, why may not it commit liim for

much more may that discretion not be interfered a breach of the peace, or for homicile, resulting with in a case which pertains to his office and dufrom the discharge of liis duties as commander-in ties as commander-in-chief, in the discharge of chief? And if the courts can compel him to an which the Constitution makes that discretion his swer, why can they not compel him to act? All peculiar and absolute prerogative. Again, the govthese things, we know, may be done in the case of ernor, having a proper regard for the dignity and private individuals; such a one may be compelled welfare of the people ot the Commonwealth, is not to answer, to account and to act. In other words, likely to submit himself to imprisonment on the if from such analogy, we once begin to shift the decree of the Court of Quarter Sessions, or to persupreme executive power from him upon whom the mit his officers and coadljutors to be thus imprisConstitution has conferred it, to the judiciary, we oned. Were we then to permit the attempt to enmay as well do the work thoroughly, and constitute force this attachment, an unseemly conflict must the courts the absolute guarılians and directors of result between the executive and judicial departall governmental functions whatever If however ments of the government. We need not say that this cannot be done we had better not take the first prudence would dictate the avoidance of a catasstep in that direction. We had better at the out-trophe such as here indicated.” set recognize the fact that the executive depart. 1. A subpana is directed to the governor of a ment is a co-ordinate branch of the government, State requiring him to produce in court a certain with power to judge what should or should not be document. Ile refuses on the ground that his offi


cial duty requires that he shall not make public the

HASTER AND SERVAVT_" FELLOW SERVANT" document. His refusal is legal (6).

-ILZUG SI'PERLITEVDENT NOT. 2. G. was sued by P. for libel. P. was a State

MAINE SUPREME JUDICIAL COURT, APRIL 5, 1884. officer, and it appears that G. had made a deposition, which he had sent to the governor, charging

MAYIIEW V. SI'LLIVAN MINING Co.* P. with drunkenness and incapacity. A subperna

One who contracts with a mining company to break down was issued to the governor to produce this deposi

rock and ore for a certain distance to disclose the vein, at tion at the trial, but the governor refused. IIis re

a stipulated price per foot. the company to furnish steam fusal was legal (7).

drill and keep the drift clear of rock as the contractor 3. In an action for libel on an officer in the army, broke it down, is to be regarded as a contractor with and

not a servant of the company. Ile is not a fellow-servant the secretary of war is asked to produce certain let

with the superintendent of the company under whose diters written to him on the subject. IIe refuses on

rection his work is performed. the ground that to do so would be injurious to the Where there is a binding contract for the performance of a public service. His refusal must be upheld by the specific job by the contractor for a price agreed, it matters court (8).

not in determining the question whether he who has un

dertaken such job is to be regarded as the mere servant In case 1 it was said: “Whether the highest offi

of the other party, what kind of work was the subject of a cer in the government or State will be compelled

the contract, or whether it was or not a portion of the reg. to produce in court any paper or document in his ular work which the party contracting for it was carrying possession is a different question (from his being compelled to appear personally), and the rule Where a ladder-hole is cut in a platform to a mino while it is adopted in such cases is that he will be allowed to

in active operation, by the direction of the superintend

ent, and one who is employed in the mine, for want of a withhold any paper or document in his possession,

railing or light, or want of warning, falls through the hole or any part of it, if in his opinion his official cluty and is injured, the company operating the mine is liable requires him to do so. These were the rules for the damages sustained, whether the person so injured adopted by Chief Justice Marshall in the trial of

was a servant or contractor. Aaron Burr. He allowed a subpona dures tecum to AN

N action of the case to recover damages alleged to President Jefferson, and held that he was bound to

have been sustained by the plaintiff by the negliappear, but that he should be allowed to keep back

gence of defendants. The opinion states the case.

The verdict was for the plaintiff in the sum of $2,500. any document or part of a document which he thought ought not to be produced.

it. P. Iriswell, for plaintiff. In case 2 it was said: As to the governor in

Ilale, Emery and Humlin, for defendant. this case being compellable to give the deposition BARROWS, J. The plaintiff claimed to recover damor writing transmitted to him, I incline to think it ages of the defendants on the ground that prior to the cannot he done. It must be a matter within his 30 day of December, 1881, he had entered into a writ

ten contract with them to break down the rock and discretion to furnish or to refuse it, and this on

ore for a certain distance so as to disclose the vein in a grounds of public policy. And Tilghman, C. J., certain drift in their mine leading northerly from the added: “It is matter of very delicate concern to main shaft at a distance of 270 feet from the surface, compel the chief magistrate of the State to produce at an agreed prico for each horizontal foot of rock a paper which may have been addressed to him

and ore so broken down, he to furnish his own powder

and oil and the mou to run the machino (who were to in confidence that it should be kept secret. Many be paid by him), the company to furnish the steam will be deterred from giving to the governor that drill and keep the drift clear of rock as he broke it information which is necessary if they are to do it down; that long prior to that date the company had at the hazard of an action, and of all the conse

constructed a substantial platform in their shaft at the

270-foot level, and at the entrance of the drift in which quences flowing from the enmity of the accused. It would seem reasonable therefore that the gov- uuder that contract, which platform until that day en

the plaintiff and his men were performing their labor ernor, who best knows the circumstances under tirely filled the shaft at that point excepting a hole in which the charges have been exhibited to him, and one corner known as the bucket-hole; that it was procan best judge of the motives of the accused, should vided in the contract that the plaintiff and his men exercise his own judgment with respect to the pro

were to have the use of the platform and of the bucket

to go up and down while performing the contract; priety of producing the writing. It is not to be

that defendants were bound to keep said platform in presumed that he would protect a wanton and ma a suitable and safe condition for the use of all persons licious libeller, and even if he should, it is better properly upon and using the same, and up to that time that a few of the guilty should escape than that a

it had been used by the plaintiff and others employed precedent be established by which many innocent daily; that on that day the defendants carelessly and

in that drift in the ordinary course of their labors persons may be involved in trouble. These seem

negligently caused a hole three feet in length by twento have been the sentiments of the Court of Com-ty-six inches in breadth to be cut for a ladder-hole in mon Pleas, who refused a subpana duces terum." that platform near the center of it, directly back of


the bucket-hole, and twenty inches distant therefrom,

without placing any rail or barrier about it, or any (6) Thompson v. German Valley R.{Co., 22 N. J. Eq 111 light or other warning there, and without giving the (1571).

plaintiff notice that any such dangerous change had (7) Gray v. Pentland, 2 S. & R. 26 (1815).

been made in the plaiform; and that witbout any (8) Beatson v. Skene, 5 H. & N. $50 (1860); Earl v. Vass, 1 How, 229 (1822).

*S. C., 70 Me. 100.

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