The sun. [volume] (New York [N.Y.]) 1833-1916, 1897-07-14
Lexow Legislation in Court.

The members of the last Legislature can
not be very proud of the record Of that body.
1t passed hundreds of bills which were so
bad that the Governor would not approve
them, and now the most notable legislation
of 1897 which did get into the statute book
has been nullified. in part at least, by the
decision of Justice ALDEN CHESTER of the
Supreme Court in the Albany district, de-
claring the Lexow Antitrust act to be
unconstitutional so far as 1t attempts to
establish a method Of procedure by which
the Acknowledgement nay procure testi-
mony In relation to trusts.
When any act Of the Legislature is at
tackled or condemned as unconstitutional,
1t is important to understand just what
provision of the Constitution is held to have
been violated. The Constitution of the State
of New York declares that Justices of the Su.
preme Court shall not hold any other Office
or public trust. This prohibition, as inter
preted by the courts, means not only that
the Justices cannot serve In any other
official capacity, but that the Legislature
cannot compel the Justices to exercise
funtions of a non-political character.
Justice CHESTER thinks that the Legisla-
ture ignored the Constitution In this respect,
by attempting to make q Supreme Court
Justice u mere assistant to the Attorney
General, In the proceeding to take evidence
under the Lexow law in order to enable the
Attorney-General to determine whether he
ought to sue anybody or not.
We quote from the opinion on this point
"The Justice to whom the application is made per-
forms no functions, save either to take the testimony
himself or to appoint a referee for that purpose. II
he appoints q referee the Justice has no other or fur
ther relation to the matter whatever. There is no
cr~osseIaminatio OF the witnesses; the testimony, II
1t can properly be called such. could not be used In an
action or In any proceeding, and the application leads
to no judgment or determination OF the court.
"The duties imposed by the statute upon the Jus.
tices are, therefore,. not judicial. but are merely an
cillary or auxiliary to the Attorney. General I'm the
performance OF his duties. This being tho case.
guided by the principles and authorities above men.
toned. l think It was beyond the constitutional power
OF the Legislature to deyolve tho duties upon Justices
OF the Supreme Court"
The only doubt which suggests itself az
to the correctness Of this conclusion arises
out of the language of the act in regard
to obtaining the order Of examination.
The order il to be granted only " If it ap-
pears to the satisfaction of the Justice to
whom the application is made that such an
order is necessary" Docs not this phrase
ology contemplate a determination which
is strictly judicial in its nature upon tho
question whetherthe proposed examination
ought or ought not to be permitted upon
the facts laid before the Justicef
The other provision of the State Consti-
tuition which Is contravened by the Lexow
law, according to Mr.. Justice CHESTER, is
that which declares that no person shall be
compelled In any criminal case to be
a witness against himself. The statute
assumes to give immunity from crimi-
nal prosecution to the witnesses, who
are, nevertheless, required by it's terms to
answer questions which may tend to con-
Wet them of a violation of It's positive
provisions IN respect 10 monopolies and