The sun. [volume] (New York [N.Y.]) 1833-1916, 1897-11-11
ANTITRUST LAW DECISION.
JUSTICE CHESTER SUSTAINED BIZ
THE APPELLATE COURT.

The ConatItutlonniuy or the LAW Not Passed
Upon, EXCEPT tho Isrovision ConrerrinE
Upon ~ Supreme Court Justice tho Power
20 Appolnt n Referee, which ls Upheid.
ALBANY, Nov. lo.-The Appellate Division
Of tho Supreme Court to-day affirmed tho dcci-
sion Of Justice Chester ~vacating his original
order appointing n referee under tho Antitrust
law passed by the last Legislature and signed
by Gov. Black. to inquire into tho existence of
an alleged coal trust. Tho court aiiirms JUS
tice Chcstcr's decision. solely on the ground
that tho moving papers OF tho Attorney.Gon
oral In the original order on which tho referee
was appointed arc ms" ficicnt under tho
statute. Tho court does not agree with Justice
Chester that tho Legislature Ind no right 10
confer upon n Supreme Court Justice tho power
to appoint q referee, and holds that such a func-
tion is judicial and constitutional. Justice
Merwin OF Utica wrote the prevailing opinion.
which was concurred in by Justices Herrick of
Albany, Parker OF Owogo and Putnam OF Sara
toRa. Justice Landon of Schenectady wrote q
dissenting opinion. Justice Herrick wrote a
memorandum explaining his concurrence in
theSmajority opinion. Justice Merwin, In dis.
GUESSING the courts findings, said:
"wo hold, first, that the original order Of Jus.
tice Chcster's Is appcalablo; second, that tho
contention that tho comforting OF power upon u
buDTtnt SOuTI ~ oHIoiitt u "
take testimony to ascertain II the law is being
violated is unconstitutional is not good. and we
hold that this power thus conferred is judicial
and constitutional; third. we affirm Justice
Chester's decision vacating his order appoint
ing o referee. on the sole ground Of the Insult.
cheney Of the moving papers OF tho Attorney
General. The court did not pass upon the con-
stitutionality of any Of the provisions OF the law
except that relating to the right Of a Justice to
appoint: a referee. which we hold is %constitu-
tional and the exercise OF n judicial power"
The following is Justice Herrick's opinion:
II concur with Justices Landon and Merwin
In tho conclusion that they have reached that
the Legislature had power to confer upon a
Justice of tho Supreme Court authority TO is.
sue an order like the one In question, and that
the power SO conferred IL n judicial power. l
also concur with Mr.. Justice Mcrwin in tho
conclusion that he has reached that tho afl.
davit OF the Attorney-Gencral Is insufficient un.
der the statute. l cannot concur with Mr.. Jus.
tice Landon in holding that u witness cannot
question the constitutionality of the act or the
posed to bring tho witness before tho court OF
referee. This is not a case where the witness
p@nains him has or has not a case, but where
he. raises. the question as TO whether the law
under ,r which h the o1 proceedings ssS aSa are n,,d taken < sn,b Is or ,t is
proceedings to bring him before the court or
referee have been legally taken under such
Of attachment proceedings brought against
him to compel his attendance in court in any
a court or magistrate and give evidence is a re.
%Btriction upon that person liberty Of action,
but when done pursuant to the law of the land
ference with tho liberty OF the person for the
purpose OF the due administration Of Justice
person has n right to insist that he shall not be
taken from his lawful pursuits and restricted
ihority: hence he is permitted to question
whether q statute under. whose authority it is
proposed to interfere with his liberty OF action
Is q valid or void statute, whether, in fact. 1t
constitutes a part of the law OF the land, and
also to question rs to whether. assuming it to
duly and regularly taken. and tho raising Of
such questions, by him as not interfering with
the party subp@n naiS him n'ehh as nos W a sood
THE majority of the court having reached
erly vacated because OF the insuttlicency Of the
moving papers, and hence it being unnecessary
under the well.settled rules OF the court, that
q question OF the constitutionality OF a statute
the G.1 decision HSi eS p Of the u esse. 'n I refrn nsee from d iDr
GUESSING those questions. although it is to be re-
GREETED that tho substantive parts of the
taken, are not passed upon"
Under the decision new proceedings may be
by the Attorney-GcnerI for the
appointment Of n referee on moving papers
drawn in compliance, with the statute.
Attorney.Gencral Hancock was much sur
prised that the court did not pass upon the con.
stitutionahty OF the law. as counsel on both
sides had asked the court when the appeal was
argued to consider all the objections raised
and to pass upon tho constitutionality of o
number Of the more important provisions of
tho law. Tho Attorney General says he will
not take any further action until after he has
secured a copy Of Justice Merwin' opinion.
In reference to the decision President Robert
n. Olyphant OF the Delaware and Hudson Canal
Company said yesterday afternoon:
The decision pleases us and everybody else
who believes in upholding the Constitution. We
have always maintained that we have no trust.
and | do not think the coal operators have been
much worried over ths outcome of the case,
This decision 10 final and ends the whole thing"