Evening journal., 1897-11-11
CHESTER IS UPHELD
Antitrust Law Gets a Check
From Appellate Court.
THE PETITION NJ1 PROPERLY BASED
Court Decides That the Attorney Geuerai
Had Deduced HIS Case Too Much
from Information aud Belief and
Not Enough From Facts.

ALBANY, Nov. 1.-THE appellate di-
vision of the supreme court has affirm
ed Justice Chester's decision vacating
his original order appointing referee
under the antitrust law passed by the
last legislature and signed by Governor
Black to inquire into the existence Of an
alleged coal trust.
The court affirms Justice Chester's
decision solely on the ground that the
moving papers of the attorney general
in the original order on which the ref
cree was appointed are insufficient un-
der the statute. The court does not
agree with Justice Chester that the leg
islafure had no right to confer upon
supreme court justice power to appoint
referee 1t holds that such function
Is judicial and constitutional.
The court does not pass upon the con-
stitutionality of the substantive provi-
slons of the law or the other provisions,
but rests its aflirmance OF Justice Ches-
ter's decision only on the insufficiency
Of the attorney generals original NOV
ing papers and affidavit.
Justice Merwin Of Utica wrote the
prevailing opinion, which was concurred
| in by Justices Herrlck Of Albany Parker
of Owego and Putnam of Saratoga JUS
I
senting opinion. Justice Herrick wrote
a memorandum explaining his concur
renee in the majority opinion. The at
torney general viii appeal to the court
Of appeals from this decision, with a
view Of getting n construction Of the
antitrust law at an early day from the
court Of last resort.
The general trend of Justice Mer-
| wins opinion is that the attorney gem
erals petition does not set forth any
ILLEGAL contract. arrangement, agree
ment or combination, but merely that
there Is one alleged to possess that char
acter. This allegation Is made merely
upon information and belief and fails
70 show the sources and grounds Of the
petitioners information and belief; fails
to show that any Of the facts alleged
occurred since the said statutes became
laws upon May :. as its allegations are
entirely indefinite as to time.
That il does not show that any Illegal
act has been committed since May 4
or that any is contemplated does not
show whether any of the alleged illega
acts occurred within this state or hao
any effect within this state; fails tC
show against whom the petitioner is de-
sirous OF determining whether any ac-
tion should be brought. and Is desirou:
Of determining whether any actor
should be brought: and the petition
shows that the action is contemplated
against a corporation. and the witness
is sought to be examined in regard L
, his knowledge Of the corporate affairs
I so that the party to be examined IL
really a corporation; but the petition
fails to specify the names of the officer
or directors Of the corporation to be ex
amined. or any of them, whose testi
r mo9y is necessary and material. or tn
z books and papers, as TO the contents o
e which an examination or inspection
i | desired.
.. It is generally agreed that 1t will b
= an extremely difficult matter for tn
T. attorney general to make his petitio
!. meet all the objections raised, and stat
/. facts. instead Of basing it upon infor
/. nation and belief