The sun. [volume] (New York [N.Y.]) 1833-1916, 1898-03-03
THE ANTI-MONSTER Law.
ARGUMENT ON AzToRNEY-aBNERlL
lHANCOCK'S APPEAL.

Attorneys for tho CopI-Cnrryinr Companies At.
tack the ConstitutionnIity OF the LsHsvv Law
Mfr. rtero. for 1Ir. nInncsct, Argue, IN sup.
port or the Attorney -Gcnerni's Coutent,op.
ALBANY. March 2.-The Court Of Appeals to-
day listened to arguments on the appeals In the
so-oalled coal monster case. which involves the
constitutionality of tho Lcxow Anti-Monster
law passed by the last Legislature. The coso
reached the court on an appeal taken by Attor.
noy-General Hancock from the decision of the
Appellate Division at Albany UNFOLDING
that of Justice Alden Chester of this
city in ~vacatinG an order originally issued
by him at the request Of tho Attorney
General appointing a referee under tho Anti
Monster law. Walter L. Ward OF this city was
tho referee, and his mission was to summon
witnesses who were to be cross-examined by the
Attorney.Gonera with a Wow Of securing evi.
denoe on which to proceed against apy monsters
found TO exist.
1t was decided TO proceed against tho alleged
coal monster 0rst, and with this end in view
Referee Ward subpmnaed the Presidents OF four
Of the biggest coal.carrying roads in the coun-
try which operate in part in this State. They
were Robert NJ. ELEPHANT OF tho Delaware and
Hudson. Samuel Sloan OF tho Delaware, Lacka-
wanna and Western, Thomas p. Fowler OF the
New York, Ontario and Western, and J. Rogers
Maxwell oil thc Jersey Central. Tho s%ubpnnas for
these witnesses had no sooner been issued than
their attorneys applied to Justice Chester, ask
ing him to vacate his order appointing Referee
Ward. The question was argued at length
before him, and he vacated his original order
appointing q referee mainly on the grounds of
the insuflciency Of tho moving papers of tho
Attorney Gonural. He did not pass upon tho
coDstitutionality Of tho substantive provisions
of tho Anti.Monster law. though he held the
power bestowed upon q Supreme Court Justice
to appoint q referee under the law was u nom
judicial function. and therefore unconstitu-
tional.
The Appellate Division Affirmed Justice Ches.
ter's decision. likewise not passing upon the
with Justice Chester on the point that for a
Supreme Court Justice to appoint n referee was
nor the exercise OF a judicial Junction. No.
Fielo for the State and the appellant, and Lewis
z. Carr of this city and David Wilcox Of New
York city. counsel for the d. and H.. and David
Sloan of the D., l.. and W.,
appeal were:
Flrst-The applicability of tho order Of the Ap.
pellate Division, and remotely that Of Justice
secondcrhe spnlciency Of the papers on which the
ton.
I%hird-Tho validity Of the law under which the
Attorney. General moved for an order OF examination.
Mr.. Ficro, on behalf OF the Attorney.General
argued that an appeal would lie to the Court of
Appeals upon, the ground that this is a special
proceeding which involves u substantial right,
question Of the oonstitutionality Of tho anti
trust law was not before the court, for the rea-
SON that the witness subpo,naed to give evil
dence to be used in connection with the matter
that character. as it would Introduce a new
rule If a witness when s~ubpGnaed was allowed
TO first obtain a determination by the court as to
whether. the parties summoning him had q
cause OF action or a defence. although 1t
question with regard to the form Of procedure
by which ne was brought into court. He con:
tho law had been fully fully deter@inea Ibs by a nunbe er
of cases in the Court of Appeals in this State.
which were cited BY Justice Chester; and that
oonstitutionalfty and propriety Of such legisia-
He argued that no other than judicial funo-
u ms, we're re sn imR0sse ID np rsiat the s 1mdS ss vi, Th1 t;P, duty =
tionai in this State.
summoned before the referee could be compelled
TO answer, it was contended thnt this question
witnesses until some question was asked VwShicRS
could be claimed to be privileged, and until such
t time the aSs witnesses Wsrs ,0 were r,d mot in Sr p9sisiSR to S, say
they could then appeal to the referee or court.
and they would not be directed to answer tho
question unless it were q proper one, but that
the Ian guagc of the act gave complete indemnity
to a witness who might be called with regard to
thorities in this state and in the United States
Supreme Court. and urging that the decision of
by the witnesses. was not applicable to this case.
With reference to the method of procedure
that he had given all tho information in his
power in the petition, and had made as full a
possession. that tho object OF the law was to en-.
able the Attorney: General to ascertain these
action should be brought. and that if he were
aware nf the facts which 1t was contended on
p Fst psrs Il th ins sp Miiessses Nc Wos sRoq be e sstie IN S UNI.
neGiessary; .5 that ~ the - statute ia tnifoG only required pro
ftca h1a and that fhia hah he N dana ovid fkn |
petition set out that fact worry fully. This could
not be ignored by the court, but it was bound to
were set out was because they wcre not within
the knowledge OF tho Attorney General. and
could not be furnished to tho court.
1t was argued further thatif the provisions of
tho act recurring a witness 70 answer were un-
act, which would be enforceable without regard
to that clause.
take a narrow view by way of int rpretation OF
q statute of this character; but that It should 30
i MbicE Ct ao In . the broad sHr and and liberal spirit p Tin in
edying an EXISTING evil which had been n r rssM
nized BY the legislature and that such statute
should, DO enforced by the courts. The points
raised by counsel for the railroad Presidents in
"Thut The order of tho lower court is not m.
peala6le to this court and cannot be here re-
viewed. because its making and aflrmance in
method OF procedure. If, however. the order
appealed from may DO reviewed BY this court, it
the original order wrs granted were insufficient
70 Justify the inauguration of the procedure au-
thoriEed by the act of 1897.
That portion OF the act of 1897 which
authorizes an investigation under the order OF
a supreme Court Justice in advance of any
action pending, or about to be commenced, can
not be sustained rs a valid exercise OF legisla-
tive power. 1t offends the Constitution because
II imposes on tho judiciary other than judicial
duties and makes 1t an aid of an executive off,
Ger in the exercise of an administrative func-
ton.
"'1he proceedings sought to be instituted can
not be sustained because the witness to be ex-
amined Is deprived Of his constitutional right OF
silence without receiving the absolute immu.
nifty no Is entitled to under our, organic law.
The act in question cannot be sustained, be-
cause other statutes having somewhat similar
features may have been enacted and SO far
escaped condemnation
1t was argued further that the court should
not review the act of a Judge in ~yacating his
own order. and that in any event the %constitn.
tionality of tho anti-munster law should not
now bo passed upon by the Court OF Appeals.
but that the decision OF the lower courts should
be upheld upon the ground of the insuhlcioncy
OF the moving papers OF the Acknowledgement