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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 case they were servants acting within the scope of their employment. This case is cited with approval in the case of Mott v. Consumers' Ice Co., 73 N. Y. 543. In the case of the Indianapolis and St. Louis Railroad Co. v. Juntegen (manuscript opinion of the Appellate Court of the Third District of Illinois), the action was for damages occasioned at the same time and by the same strike which is the subject of consideration in this action. The court in that case held that the plaintiff was not entitled to recover. It however placed its decision upon the ground that it appeared from the evidence upon the trial that but a small portion of the strikers had been in the employ of the defendant's company; that they had left their employment and joined the strike, and that the great body of strikers were men not in the employ of the company. The evidence in the case under consideration appears to be quite different upon this branch, making it a proper question for the jury. In the case of the Pittsburg, Fort Wayne and Chicago Railroad Co. v. Hazen, 84 Ill. 36; S. C., 25 Am. Rep. 422, the action was for damages occasioned in consequence of a strike. The rule was there stated as follows: "From the delay resulting from the refusal of the employees of the company to do duty, the company is undoubtedly responsible. For delay resulting solely from the lawless violence of men not in the employment of the company, the company is not responsible even though the men whose violence caused the delay had. but a short time before been employed by the company. In the case of the Pittsburg, Cincinnati and St. Louis Railroad Co. v. Hollowell, 65 Ind. 188; S. C., 32 Am. Rep. 63, the action was for damages occasioned by the breach of an agreement to ship live stock, and such breach was occasioned by a strike among the employees of the company. The question was raised upon a demurrer to the pleading. The majority of the court held the pleading insufficient, but differed in reference to its construction and not in reference to the rule of law applicable. The rule as there stated is, that whether the persons causing the delay complained of were the employees of the defendant or not, was a question of fact for trial, and that where the delay was caused by a strike or mob composed solely of the employees of the railroad company, the company will not be excused from carrying the freight in accordance with its contract. This case appears to be in point, and in accordance with the weight of authority in this State. We do not regard it as in conflict with the case of the Pittsburg, Fort Wayne and Chicago Railroad Co. v. Hazen, supra. In that case the evidence tended to show that the

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In State v. Nebraska Telephone Co., Nebraska Supreme Court, January 21, 1885, 22 N. W. Rep. 237, it was held that telephone companies being common carriers of news, all persons are entitled to equal facilities in the employment of the benefits to be derived from the use of the telephone; and where no good reason is assigned for a refusal by a telephone company to furnish a telephone instrument to a person who desires to become a subscriber, and ten. ders a full compliance with all the rules established for other subscribers, a writ of mandamus will issue to compel such company to furnish such person with the necessary instruments. The court said: "The demands of the commerce of the present day make the telephone a necessity. All people, upon complying with the reasonable rules and demands of the owners of the commodity — patented as it is - should have the benefits of the new commerce. The wires of respondent pass the office of the relator. Its posts are planted in the street in front of his door. In the very nature of things, no other wires or posts will be placed there while those of respondent remain. The relator never can be supplied with this new element of commerce, so necessary in the prosecution of all kinds of business, unless supplied by the respondent. He has tendered to it all the money required by it from its other subscribers in Lincoln for putting in an instrument. He has proven, and it is conceded by respondent, that he is able, financially, to meet all the payments which may become due in the future. It is shown that his office can be supplied with less expense and trouble to respondent than many others which are furnished by it. No reason can be assigned why respondent should not furnish the required instruments, except that it does not want to. There could, and doubtless does exist in many cases, sufficient reason for failing to comply with such a demand, but they are not shown to exist in this case. It is known to be essential to the business interests of relator that his office be furnished with a telephone. The value of such property is of course conceded by respondent, but by its attitude, it says it will destroy those interests and give to some one in the same business, who may have been more friendly, this advantage over him. It is said by respondent that it has public telephone stations in Lincoln, some of which are near relator's office, and that he is entitled to and may use such telephone to its full extent by coming there; that like the telegraph, it is bound to send the messages of relator, but it can as well do it from these public stations; that it is willing to do so, and that is all that can be required of it. Were it true that respondent had not undertaken to supply a public demand beyond that undertaken by the telegraph,

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then its obligations would extend no further. But as the telegraph has undertaken to the public to send dispatches from its offices, so the telephone has undertaken with the public to send messages from its instruments, one of which it proposes to supply to each person or interest requiring it, if conditions are reasonably favorable. This is the basis upon which it proposes to operate -- the demand which it proposes to supply. It has so assumed and undertaken to the public. That the telephone, by the necessities of commerce and public use, has become a public servant, a factor in the commerce of the nation, and of a great portion of the civilized world, cannot be questioned. It is to all intents and purposes a part of the telegraphic system of the country, and in so far as it has been introduced for public use, and has been undertaken by the respondent, so far should the respondent be held to the same obligation as the telegraph and other public servants. It has assumed the responsibilities of a common carrier of news. It has and must be held to have taken its place by the side of the telegraph of such common carrier. The views herein expressed are not new." Citing Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 9; State v. Bell Telephone Co., 36 Ohio St. 296; S. C., 38 Am. Rep. 583, and note, 587.

RULES AS TO THE PRIVILEGES OF WIT

NESSES.

RULE. An officer of the government is not compellable to give evidence (a) or to produce documents (b) which, in his opinion, it is for the public interest to keep secret (1); nor in any case while he is officially engaged in the duties of his office (c).

The first judicial expression and enforcement of this rule is believed to have taken place in the celebrated American State trial of Aaron Burr (2), Chief Justice Marshall saying: "That the president of the United States may be subpoenaed and examined as a witness, and required to produce any paper in his possession is not controverted. I cannot however on this point go the whole length for which counsel here contended. The president, although subject to the general rules which apply to others, may have sufficient motives for declining to produce a particular paper, and those motives may be such as to restrain the court from enforcing its production. I do not think precisely with the gentlemen on either side. I can readily conceive that the president might receive a letter which it would be improper to exhibit in public, because of the manifest inconvenience of its exposure. The occasion for demanding it ought in such a case to be very strong, and to be fully shown to the court

(1) Marbury v Madison, 1 Cranch. 137 (1803); Totten v. United States, 92 U. S. 105 (1875); R. v. Hardy, 24 How. St. Tr. 199; R. v. Watson, 32 id. 102.

(2) Burr's Trial, vol. 2, page 535.

before its production could be insisted on. I admit that in such a case much reliance must be placed on the declaration of the president, and I do think that a privilege does exist to withhold private letters of a certain description. The reason is this: letters to the president in his private character are often written to him in consequence of his public character, and may relate to public concerns. Such a letter, though it be a private one, seems to partake of the character of an official paper, and to be such as ought not on light ground to be forced into public view. Yet it is a very serious thing, if such a letter should contain any information material to the defense, to withhold from the accused the power of making use of it. It is a very serious thing to proceed to trial under such circumstances. I cannot precisely lay down any general rule for such a case. Perhaps the court ought to consider the reasons which would induce the president to refuse to exhibit such a letter as conclusive on it, unless such letter could be showu to be absolutely necessary in the defense. The president may himself state the particular reason which may have induced him to withhold a paper, and the court would unquestionably allow their full force to these reasons. At the same time the court could not refuse 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 would not proceed further in the case without such 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 testimony on the materiality of the paper required, but that is not offered. In no case of this kind would a court be required to proceed against the president as against an ordinary individual. The objections to such a course are so strong and so obvious that all must acknowledge them. But to induce the court to take any definitive and decisive step with respect to the prosecution, founded on the refusal of the president to exhibit a paper, for reasons stated by himself, the materiality of that paper ought to be shown. In this case however the president has assigned no reason whatever for withholding the paper called for. The propriety of withholding it must he decided by himself, not by another for him. Of the weight of the reasons for and against producing it he is himself the judge. It is their operation on his mind, not on the mind of others, which must be respected by the court. They must therefore be approved by himself, and not be the mere suggestions of another to him. It does not even appear to the court that the president does object to the production of any part of this letter. The objection, and the reasons in support of the objection, proceed from the attorney himself, and are not understood to emanate from the president. He submits it to the discretion of the attorney. Of course it is to be understood that he has no objections to the production of the whole if the attorney has not. Had the president when

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may arrive at a conclusion different from that of the governor, and if they do it will be their duty to decide according to their own views, as the governor in his action must be governed exclusively by his views. The governor cannot be examined as to his reasons for not signing the bill, nor as to his action in any respect regarding it. But there is no reason why he should not be called upon to testify as to the time it was delivered to him; that is a bare fact that includes no action on his part. To this extent at least, I am of opinion that he is bound to appear and testify."

he transmitted it subjected it to certain restrictions, and stated that in his judgment the public interest requires certain parts of it to be kept secret, and had accordingly made a reservation of them, all proper respect would have been paid to it, but he has made no such reservation. As to the use to be made of the letter it is impossible that either the court or the attorney can know in what manner it is intended to be used. The declarations therefore made upon that subject can have no weight. Neither can any argument on its materiality or immateriality drawn from the supposed contents of the 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 accused, 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 subpoenaed. 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 wealth, the adjutant-general, chief executive officers court will take any order that may be necessary. I of the executive department of the State governdo not think that the accused ought to be prohib-ment, 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 subpoenaed 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 the case. 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 passages 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 subpoenaed 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 officers of the Commonwealth. lieve, myself, 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 treat this case just as though the process, first and last, were against the governor alone; for if he is exempt from attachment because of his privilege his immunity protects his subordinates and agents. The general principle is that whenever the law vests any person with the power to do an act, at the same time constituting him a judge of the evidence on which the act may be done, and contemplating the employment of agents through whom the act is to be accomplished, such person is clothed with discretionary powers, and is quoad hoc a judge. His mandates to his legal agents, on his declaring the event to have happened, will be a protection to those agents. Vanderheyden v. Young, 11 Johns. 158, per Spencer, J. It follows, if the governor, as supreme executive and as commanderin-chief of the army of the Commonwealth, is charged with the duty of suppressing domestic insurrections, he must be the judge of the necessity requiring the exercise of the powers with which he is clothed, and his subordinates who are employed to render these powers efficient, and to produce the legitimate results of their exercise, can be accountable to none but him. In like manner, if he is constituted the judge of what things, knowledge or information coming into his department through

ILLUSTRATIONS.
(A.)

1. The governor of a State is summoned to testify as to his reasons for not signing an act of the Legislature, and as to his actions otherwise in respect to it. He can legally refuse to answer (3).

2. The governor of a State is summoned to testify as to the time an act was delivered to him for his approval. He cannot legally refuse to answer (4). 3. Certain riots in the State being under investigation by the grand jury, a subpoena is issued to the governor and his officers, requiring them to attend before that body, and testify to facts within their knowledge as to the origin and continuance of the riots. The governor and his officers decline so to testify, on the ground that such disclosures are against the public interest. This excuse is legal, and they cannot be compelled to testify (5).

In cases 1 and 2 it was said: "The time when it was delivered to the governor may be a very material fact in determining that question. That is a proper question for the courts to determine. They (3) Thompson v. German Valley R. Co., 22 N. J. Eq. 111 (1871).

(4) Id.

(5) Appeal of Hartranft, 85 Pa. St. 442 (1877).

himself, personally or from his subordinates, may or may not be revealed, then such subordinates without his permission cannot be compelled to disclose in court any such matters or information. What then are the duties, powers and privileges of the governor? In the language of the Constitution, article 4, section 2, "the supreme executive power shall be vested in the governor, who shall take care that the laws be faithfully executed." Also same article, section 7: "The governor shall be commander-in-chief of the army and navy of the Commonwealth, and of the militia, except when they shall be called into the actual service of the United States." He is also invested with the appointing and pardoning powers; the power to convene the Legislature in cases of emergency, and to approve or veto bills submitted to him by the General Assembly. It is scarcely conceivable that a man could be more completely invested with the supreme power and dignity of a free people. Observe, the supreme executive power is vested in the governor, and he is charged with the faithful execution of the law, and for the accomplishment of this purpose he is made commander-in-chief of the army, navy and militia of the State. Who then shall assume the power of the people, and call this magistrate to an account for that which he has done in discharge of his constitutional duties? If he is not the judge of when and how these duties are to be performed, who is? Where does the Court of Quarter Sessions, or any other court, get the power to call this man before it, and compel him to answer for the manner in which he has discharged his constitutional functions as executor of the laws and commander-inchief of the militia of the Commonwealth? For it certainly is a logical sequence that if the governor can be compelled to reveal the means used to accomplish a given act he can also be compelled to answer for the manner of accomplishing such act. If the Court of Quarter Sessions of Allegheny county can shut him up in prison for refusing to appear before it and reveal the method and means used by him to execute the laws and suppress domestic violence, why may not it commit him for a breach of the peace, or for homicide, resulting from the discharge of his duties as commander-inchief? And if the courts can compel him to answer, why can they not compel him to act? All these things, we know, may be done in the case of private individuals; such a one may be compelled to answer, to account and to act. In other words, if from such analogy, we once begin to shift the supreme executive power from him upon whom the Constitution has conferred it, to the judiciary, we may as well do the work thoroughly, and constitute the courts the absolute guardians and directors of all governmental functions whatever. If however this cannot be done we had better not take the first step in that direction. We had better at the outset recognize the fact that the executive depart. ment is a co-ordinate branch of the government, with power to judge what should or should not be

done within its own department, and what of its own doings and communications should or not be kept secret, and that with it, in the exercise of these constitutional powers, the courts have no more right to interfere than has the executive, under like conditions, to interfere with the courts. In the case of Oliver v. Warmouth, 22 La. 1, it was held (per Taliafero, J.), that under the division of powers, as laid down in the Federal and State Constitutions, the judiciary department has no jurisdiction over or right to interfere with the independent action of the chief executive in the functions of his office, even though the act he is required to perform be purely ministerial. This is putting the matter on very high grounds, for in such case no other officer would be exempt from the mandatory power of the judiciary. No case could more forcibly exhibit the extreme reluctance of courts to interfere with the functions of the supreme executive, for the hypothesis put is the refusal of the governor to perform a duty cast upon him by law of a character strictly ministerial. think however that the ground upon which this decision stands is substantial; for as the learned justice well argued, the difficulty arises in the attempt to establish a distinction between ministerial and discretionary acts as applied to the governor, and then to conclude that the former may be enforced by judicial decree; it is objected however that the doctrine is unsound in this, that it gives to the judiciary the large discretion of determining the character of all acts to be performed by the chief executive; that this would infringe his right to use his own discretion in determining the very sam question; that he must necessarily have the unconditional power of deciding what acts his duties require him to perform, otherwise his functions are trammelled, and the executive branch of the government is made subservient to the judiciary. The principle enunciated in the above stated case applies with greater force to what we now have under consideration; for if the governor's discretion may not be interfered with in a matter purely ministerial, much more may that discretion not be interfered with in a case which pertains to his office and duties as commander-in-chief, in the discharge of which the Constitution makes that discretion his peculiar and absolute prerogative. Again, the governor, having a proper regard for the dignity and welfare of the people ot the Commonwealth, is not likely to submit himself to imprisonment on the decree of the Court of Quarter Sessions, or to permit his officers and coadjutors to be thus imprisoned. Were we then to permit the attempt to enforce this attachment, an unseemly conflict must result between the executive and judicial departments of the government. We need not say that prudence would dictate the avoidance of a catastrophe such as here indicated."

1. A subpoena is directed to the governor of a State requiring him to produce in court a certain document. He refuses on the ground that his offi

We

cial duty requires that he shall not make public the document. His refusal is legal (6).

3. In an action for libel on an officer in the army, the secretary of war is asked to produce certain letters written to him on the subject. He refuses on the ground that to do so would be injurious to the public service. His refusal must be upheld by the court (8).

2. G. was sued by P. for libel. P. was a State officer, and it appears that G. had made a deposition, which he had sent to the governor, charging P. with drunkenness and incapacity. A subpoena One who contracts with a mining company to break down

MAYHEW V. SULLIVAN MINING CO.*

was issued to the governor to produce this deposition at the trial, but the governor refused. His refusal was legal (7).

rock and ore for a certain distance to disclose the vein, at a stipulated price per foot. the company to furnish steam drill and keep the drift clear of rock as the contractor broke it down, is to be regarded as a contractor with and not a servant of the company. He is not a fellow-servant with the superintendent of the company under whose direction his work is performed.

Where there is a binding contract for the performance of a specific job by the contractor for a price agreed, it matters not in determining the question whether he who has undertaken such job is to be regarded as the mere servant of the other party, what kind of work was the subject of a the contract, or whether it was or not a portion of the regular work which the party contracting for it was carrying

on,

In case 1 it was said: "Whether the highest officer in the government or State will be compelled to produce in court any paper or document in his possession is a different question (from his being compelled to appear personally), and the rule adopted in such cases is that he will be allowed to withhold any paper or document in his possession, or any part of it, if in his opinion his official duty requires him to do so. These were the rules adopted by Chief Justice Marshall in the trial of Aaron Burr. He allowed a subpana duces tecum to President Jefferson, and held that he was bound to appear, but that he should be allowed to keep back any document or part of a document which he thought ought not to be produced.

In case 2 it was said: "As to the governor in this case being compellable to give the deposition or writing transmitted to him, I incline to think it cannot he done. It must be a matter within his discretion to furnish or to refuse it, and this on grounds of public policy. And Tilghman, C. J., And Tilghman, C. J., added: "It is matter of very delicate concern to compel the chief magistrate of the State to produce a paper which may have been addressed to him in confidence that it should be kept secret. Many will be deterred from giving to the governor that information which is necessary if they are to do it at the hazard of an action, and of all the consequences flowing from the enmity of the accused. It would seem reasonable therefor that the governor, who best knows the circumstances under which the charges have been exhibited to him, and can best judge of the motives of the accused, should exercise his own judgment with respect to the propriety of producing the writing. It is not to be presumed that he would protect a wanton and malicious libeller, and even if he should, it is better that a few of the guilty should escape than that a precedent be established by which many innocent persons may be involved in trouble. These seem to have been the sentiments of the Court of Common Pleas, who refused a subpœna duces tecum." JOHN D. LAWSON.

MASTER AND SERVANT " FELLOW SERVANT"
-MINING SUPERINTENDENT NOT.

(7) Gray v. Pentland, 2 S. & R. 26 (1815).

(8) Beatson v. Skene, 5 H. & N. 850 (1860); Earl v. Vass, 1 How. 229 (1822).

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MAINE SUPREME JUDICIAL COURT, APRIL 5, 1884.

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Where a ladder-hole is cut in a platform to a mine while it is

in active operation, by the direction of the superintendent, and one who is employed in the mine, for want of a railing or light, or want of warning, falls through the hole and is injured, the company operating the mine is liable for the damages sustained, whether the person so injured was a servant or contractor.

A

N action of the case to recover damages alleged to have been sustained by the plaintiff by the negliThe opinion states the case. gence of defendants. The verdict was for the plaintiff in the sum of $2,500. A. P. Wiswell, for plaintiff.

Hale, Emery and Hamlin, for defendant.

BARROWS, J. The plaintiff claimed to recover damages of the defendants on the ground that prior to the 3d day of December, 1881, he had entered into a written contract with them to break down the rock and ore for a certain distance so as to disclose the vein in a

certain drift in their miue leading northerly from the main shaft at a distance of 270 feet from the surface, at an agreed price for each horizontal foot of rock and ore so broken down, he to furnish his own powder and oil and the meu to run the machine (who were to be paid by him), the company to furnish the steam drill and keep the drift clear of rock as he broke it down; that long prior to that date the company had constructed a substantial platform in their shaft at the

270-foot level, and at the entrance of the drift in which the plaintiff and his men were performing their labor under that contract, which platform until that day entirely filled the shaft at that point excepting a hole in one corner known as the bucket-hole; that it was provided in the contract that the plaintiff and his men were to have the use of the platform aud of the bucket to go up and down while performing the contract; that defendants were bound to keep said platform in a suitable and safe condition for the use of all persons properly upon and using the same, and up to that time it had been used by the plaintiff and others employed in that drift in the ordinary course of their labors daily; that on that day the defendants carelessly and negligently caused a hole three feet in length by twenty-six inches in breadth to be cut for a ladder-hole in 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 (1871). plaintiff notice that any such dangerous change had been made in the platform; and that without any

*S. C., 76 Me. 100.

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