New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1897-11-11
DECISION IN COAL TRUST CASE.
JUSTICE CHESTER sUSTAINED-THE CONSTI-
TUTIONALITY OF THE LAW NOT
PASSED ON.

Albany. Nov. 1o-The Appellate Division OF the
Third Department has agreed with Judge Chester
IN vacating the order compelling the Coal Trust
presidents toappear before a referee They do not de-
eide the question OF the constutionality OF the law
except through Judge Landon, who dissen;s. Judge
Merwin writes the prevailing opinion. In which he
holds that the decision OF Justice Chester must be
sustained. en- the ground that the affidavit OF the
Attorney-General. on which the order was granted.
Is insufficient Judges Parhe. and fierrick agree
with him In this but Judge Landon dissents on
the ground that witness cannot attack a pro-
vision Of the law that strips him Of his rights il
that provision is for the benefit OF others.
Justice Merwin in his opinion says that the
Legislature had the right to confer upon Judge
OF the Supreme Court authority to issue an order
Ike the one In question. and that the power
ferred is judicial power This is as far az the
opinion goes on the question Of constitutonality,
the Court saying that IL is rule OF the Court not
IS necessary for the absolute determination OF the
question
Judge Herrick in a brief memorandum con-
curing in the opinion Of the majority of the Court
says that he regrets that the matter OF the CON
sututohalty of the law cannot be construed at
G9 dns S2 hereors Is that he
az on the local coal presidents again and thea
and can ieo oe dGoi1Se A.
sdseG IN the case were much surprised when the
not touched the question Of constitu;lonaity and
mao only affirmed the minor portions OF Justice
:, The questions answered are o. a Supreme Court
Judge can assume the powers granted under the
new law anG they are perfectly Judicial (2) tho
Attoiney-GeIerafs affidavit not complete or
specihc enough ard must be based upon facts no,
mere superstition. The questions not answered are
as to the immunity from punishment Of prisoners
VINO testify and as to the constituiorality OF tho
law In general. "
III the opinion Of Judge Morwin is rightly con-
strued and there Is some difficulty In construin,
II because Jucge Merwln says II am not writing
opinions for publication in ncwspapcrs'-the gen
eral trend Is that the Attorney Generals petition
uoe3 not SGT forth any Illegal contract, arrange
inent. agrecment or combination. but merely that
tnre ~ one alleged to possess that character This
aInCntlon IS made merely upon informa ton and
oi the petitioners information and belief fails II
snow that any OF the facts alleged occurred since
the statutes became laws MAY I. 1897 rs the
allegations are entirely indefinite 10 time; does
not snow int any Illegal act has been committed
since MAY l. 1871 or that any is contemplated.
acts occurred within this State or had any effect
within this state: fails to show against whom the
petitioner is DESTROYS OF determining whether
action should be brought. and the neition shows
ton. ana tho witness l. sought to be examined in
regard 10 his knowledge OF the corporate affairs
so thaf the party 10 b" examined Is really
poraton; but the petition fails to specify the
names Of m" officers or directors OF the cOrpora-
tion 10 10 examined. or ary - them whose esti-
papers as to the contents OF which nm examination
or inspection IS desired
II is generally agreed that Il will be extremely
difficult matter FOR tho Attoru"y-'icncra 20 mako
state facts instead OF basing II upon information
and belief
aLn rN.fou