New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1897-07-13
PRICE THREE CENTS.
ANTITRUST LAWS VOID.
JUDGE cHEsTERs OPINION OF THE
LEXOw LEGISLATION.

HE SAYS 1T DEPRTvEs WITNESSES ACCUSED o.
CRIME OF THEIR RIGHTS AND IS OTHER.
WISE uNcoNsrITUTIoNAI-THE COAL
ROAD PREsIpENrs WIN.
Albany. July 12-Justice Alden Chester has.
vacated the order granted by him on the ap-
plication OF the Attorney General on May II
compelling the presidents OF the anthracite coal
roads to appear before a referee as witnesses In
a procedure under the new Antitrust laws to
determine to whether there is an illegal con.
tract. arrangement or combination In violation
of Chapters SS3 and 1884 Of the Laws Of 1897 N
which they or their roads are participants.
The motion which the decision was given
was argued before Judge Chester June :. after
service on the presidents Of the various roads
OF orders for them to appear before Walter T.
Ward, OF Albany, IS referee. The motion was
on behalf OF II. NJ. Olyphant. Of the Delaware
and Hudson; Samuel Sloan OF the Delaware.
Lackawanna and Western; Thomas p. Fowler.
Of the Ontario and Western, and J. Rogers
Maxwell. Of the Jersey Central for a vacation
Of the order, the ground that the acts were
unconstitutional, that the Legislature exceeded
its powers. and that the powers given to the
Supreme Court Judge exceeded the judicial
functions allowed by the Constitution. Emil
nent counsel argued the case for the roads
the new law on request and without reference
to the merits of the application.
An appeal will be taken at once from to-day's
decision to the Appellate Division Of the su-
preme Court, but as that body does not sit
until September I. and as an appeal will be
taken afterward to the Court OF Appeals. there
will be no final decision much before the last
| month of the year
GROUNDS OF THE DECISION.
In his decision Judge Chester declares that
the power granted to the Supreme Court Judge
is excessive Of the judicial functions granted by
the Constitution The Legislature. he holds. has
no power to impose upon a Supreme Court
Judge functions Of non-j judicial character. as
it has done in these laws. He says also that
the procedure sought to be authorized IN the
statute presents an instance of serious in
fraction Of the Constitution by making the
Justice notary or hgurehead, with no
discretion to whether there are merits In an
application fog the appointment Of referee.
AS to the rights and privileges OF witness
charged with crime. he says the Constitution
of the State and of the United States both
grant immunity from punishment for witness
who gives testimony against himself. The stat
ute attempts to give relief by forbidding crimi-
nal prosecution on such testimony, but Judge
Chester does not think 1t goes far enough to
give the absolute immunity granted by the
Constitution.
Outside Of the constitutional points. Judge
Chester also finds that there is an insufficiency
of material in the petition for an order No
facts are stated, on.y information and bellef
being alleged. without any sources being de-
tailed Of information or any grounds for be-
lief. Such insufficient proof Of facts would not
be admissible in court Of justice
NOT JUDICIAL FUNCTIONS.
Parts Of Judge Chesters decision follow:
Il seems to me very clear in the first place that
there Is an attempt in this act TO IMPOSE upon ,ne
Justice OF the Supreme Court lon-Juuiciai lunc-
tions which cannot be sustained undsr our ssase
system of Government. we'll as under the reo-
| eral system the respective constitutions provide
for complete separation be;ween the eHsen'e; s,b e;
these powers Is independent OF each OF the others.
tive officers of the State, having an important re-
laton TO the executive department OF tne roveIn'
ment This act provides In substance tnat tor @ inc
ceedng should be commenced the Attorney Ten.
eral may ex mine and procure the testimony OF
witnesses in the manner herein prescrlnea, anu
whenever he deems IL necessary or proper 10 pro-
cure testimony before beginning an acton or pro-
ceedng he r1ay present TO any Justice OF the SUI
preme Cour, application in writing for an order
directing sucE persons as he may require 10 ap,
pear before the Justice or referee designated ny
the order and answer such relevant ana materlal
questions may be put TO them concerning any
alleged Illegal contract, ARRANGEMENT. agreement
or combination In violation OF the act III II ap-
| pears TO the satisfaction of the Justice to whom
the application for the order is made that sucn an
order is necessary, then such order shall be grant
ed The testimony taken by the Justice or referee
| must be certified and delivered to the Attorney
General at the close of the examination.
Il thus appears clearly that the examination au-
thorized by the act is merely 20 aid the Attorney
General IN determining the question az 10 whether
or not he should commence an acti9n 9 ono ms s,ch -
simply aids the Attorney General to determine
question relating wholly TO- the proper discharge
by him Of 4 public duty. The duties Imposed by
the justices are therefore not judicial, but are
merely anclsry or auxiliary TO the Attorney,Gsn.
ba case "a guided by the principles and authorities
above mentioned / think It was beyond the cen. en-.
stitutiona power OF the Legislature TO devolve the
duties upon Justices of the Supreme Court
PROTECTION OF WITNESSES
In tho next place think the procedure sought
n he authorized in this statute presents an In
stances of a serious infracton OF the constitu-
tional rights and privileges OF a witness charged
with a crime. The act provides that no person
shall be excused from answering any question that
may be put to him on the ground that II may
tend to convict him of violation OF the provisions
of the act violation O. ,hs OF .me
and on conviction thereof the person Is punishable
by a fine 1r Imprisonment. or by both such fine and
The CONSTITUTION of the State provides that mo
person shall b. e9mpee6 III any This same
provision carried inio the sth amendment q, Of
The OF 81 the nsa a Of ydence hat IL asV w
shall oct be compelled lied In ss;,nosy Ssas wiz n
tend to criminate him or subject him to fines.
penalties or forfeitures 49, ... ., ~.
statute in question to give immunity 10 the WIZ,
animation under this act shall not be given In
exidence against him I'm any criminal action or
nroceeding. nor shall any criminal action or pro-
ceeding be brought against such witness on ac-
cornt of the tes imony given by him.
This language comes far short. in my opinion.
from giving absolute immunity to the wines rom
or proceeding shall be brought against him on ac.
count Of the testimony so given ny nm rms would
ment or prosecution for perjury because o. the
alleged faisity of his testimony but !; would not
shment for violation OF the provision. OF the act
instances appearing In the testimony drawn from
him under the compulsion OF this examination. snd
g., r.lation TO which the law expressly states that
ha shaii not be excused from testifying. The act
ron,ans no immunity from the prosecution OF the
Witness for the crime which IL sought 10 be dscov.
cred Inv the examination, and the discovery OF
which is the chief purpose OF the examination
whe Attorney General has indorsed direction
non The order requiring all books. papers ana
dpom,,ents in his possession under his control
,,ns, In anv way 10 an alleged contract agree