New-York tribune., 1900-06-14
NO DECISION ON ICE TRUST
JUDGE CHESTER HEARS ARGUMENTS OF
OPPOSING COUNSEL IN ALBANY.

Trust disclosed their line Of defence before Judge
Chester. Of the Supreme Court, here to-day. In
essence that defence IS that the Antitrust law
of 1898 s UNCONSTITUTIONAL second IL II Is consttu-
ucnal the Ice Trust cannot be reached by It, being
foreign corporation. but only under the Sherman
Antitrust law OF the National Congress; third.
that the Attorney General has omitted various
necessary forms OF procedure in his papers, and
fourth that IN any the Ice Trust is not g.
monopoly because, alleged, any one can buy In
winter fee anywhere in the Northern States
David Wilcox and William H Rand appeared for
the American Ice Company. and Judge Edward F.
Coyne and Benjamin F. Einstein for the state
The arguments were the writs Of prohibition
issued by Judge ID. Cady Herrick. of the supreme
Court prohibiting any further legal examination
OF President Morse OF the American Ice Company
or any of the officials of that company before Ex-
Senator Meyer Nussbaum. the referee appointed TO
take testimony under the Attorney-Generals COM
plant against the American Ice Company.
"A FISHING EXPEDITION"
Mr. wilcox as the counsel for the coal carrying
railways was successful in 1897 in showing tne
weakness of the Antitrust law OF that year. ne
contrasted that law with the Antitrust law or
1919 and made It clear that he intends once more
a.+scltne that feature of the law which apparently
gives the Attorney-General unlimited power 10
make a fishing expedition as MI WILCOX phrHseo
:. in search OF evidence TO convict the trust mag
mates before submitting his case for 'f1aI 10 'ne
courts.
J,dge covne at the beginning of the day moved
sle dismissal OF Judge Herricks suit He held that
wrts OF prohibition were State wTits and were IN
tended to restrain inferior courts from doing what
they had no right 10 do. whereas in this case the
writ was directed against a coordinate branch OF
che court in the person OF ex-senator Nussbaum.
the referee who for the purpose OF this action
had all the powers of Justice OF the Supreme
Court.
Mr Wilcox argued that the petition OF the At
torney-GeneraI did not show the facts specified by
the Antitrust statute and the Of the court
was therefore unauthorized by law: second. that
the procedure sought TO be established by the
Antitrust statute unconstitutional; third. that
she provisions regarding procedure ARE unconstitu-
ttonsi because they attempt TO impose upon the
justices of the Supreme Court non-Judicial func-
tions'' fourth that the provision OF the statute
conferring upon the referee power 10 summon wit
nesses and punish them for contempt is also un-
constitutional" He argued that It was manifest
that the petiton must show state of facts within
the statute; otherwise there was nothing warrant
ing the order The petition did not show any viola
ton Of the statute The statement that the Ameri
can Ice Company had raised the price of ice did
not show any fact within the statute.
THE QUESTION OF CAPITALIZATION.
The suggestion that the American Ice Company
WAS capitalized at greater than the value
or its property was without consequence. Under
its New-Jersey charter the judgment of its Board
of Directors conclusive as to the value OF the
property which 1t acquired. and the statute sought
o enforced contained no limitation upon the
subject Moreover the petition showed that the
Acknowledgement had determined TO begin
tion other than that authorized by the statute
Added 20 this the order required the production
Of numerous papers which had no relation TO the
combination alleged. The provisions requiring wit
nesses TO submit general examination by
administrative official regarding their private af-
fairs unconstitutional. because they deprived
persons against whom they taken of liberty
without due process OF law.
The proceedings not judicial in character
but merely tnQuisition conducted by the Attor-
ney-General. They had not even the purpose of
aiding him IN determining whether to bring
ton proceeding. the under the for
mer Antitrust law. The witness dragged be-
fore the referee without notice. He was not re-
quired 10 answer relevant and material questions
the Antitrust law Of 1897 provided but gener-,
ally such questions may be put to him con-
cerning any alleged Illegal contract, arrangement
agreement combination" By the terms of the
statute any person selected by the Attorney-Gen-
eral was required to disclose his private affairs
without any limitation to the extent Of the dis
closure; Il he declined TO do he was subject to
punishment for contempt, without any hearing or
judicial determination upon the subject and with
out the aid Of counsel TO advise him ManifestIy
the statute deprived the witness OF his liberty
without due process OF law Again there could be
no doubt that a corporation was entitled to the
same constitutional immunity from self-incrimina-
ton.
LIMITATIONS ON ABSOLUTE POWER
In concluding his argument Mr.. Wilcox read the
following from his brief
These features of the act generally constitute a
novel attempt TO ignore the limitations upon alb
eouse eSss PoSsr by Phomsoever sought to be exer
as the result OF the efforts and wisdom Of CEN
American a esssna IA part Of English and
neSsugSuofs regarding alleged crime shall be made
Section g as that accused person shall be CON.
T3sted 0niy by verdict Of twelve jurors Proceed
have no place in Anelo-Saxon juTfspr7Idence eSce0t
IN preliminary examinations before rnseieTrate
Where the accused is advised Of the natnre Of tbe
charge, Is entitled to counsel can make or refrain
from making his own statement and where bail or
GnrI goitreat " men 70 await the action of the Grand
80 oery Is me only result This statute of the State
~ oIk then seeks TO revert methods Of
anguislton which Were abandoned in Angio-Saxon
70. 70 transform its Attorney-General into a iuge
.+In The language Of the Supreme Court
Sug chara terlzes the attempt: ANY compulsory
a9 oasGovery by extorting the partys oath or com
papers to convict him Of crime or 70 3opfi, ana mo
IoPery Is contrary to the principles Of free gov
tlsllshInan 1t is abhorrent the Instincts OF an
power ii cannot abide tbe ehe purposes Of despotto
litical liberty and personal freedom Tbis s+tspD+ ~
not prevail over the guarantees Of personal rights
'aiiied IN the written constitutions of the coun-
MI wilcox said that the price OF ice was not OF
so much Importance the question of the ,1eb,
under the Constitution Of permitting such nroceAd
,nes as those which were authorized by the Anti
Trust law of 1899.
Judge Coyne then began his reply He said that
the Attorney-General in his reply would give the
counsel OF the American Ice Company annie IN
formation regarding the Illegal acts of that COM
pany- The Judges OF the Supreme Court were not
bound 10 grant order for the examination Of
witnesses In such that of the American n
Ice Company. The statute gave the judges power
30 grant not grant the order as they deernaa
II was wise In the evidence submitted TO them
There was no question to the power OF referees
TO compel witnesses 10 testify upon questions or