The times. [volume] (Washington [D.C.]) 1897-1901, 1900-06-28
blow TO THE ICE TRUST
An Adverse Decision by Supreme
Court Justice Chester.
Rules Against the Motion to Vncntc
the Order Requiring Company to
Produce Its Books and Papers Be
fore Referee Nusbnum-POwer of
the Attorney General Sustained.

ALBANY, June 27.-Justice Alden Ches-
ter, of the Supreme Court, today handed
down an opinion which scores point
against the Ice Trust. In his decision the
justice refused TO vacate the order granted
by Justice Chase appointing Myer Nuss-
baum as referee to conduct the enquiry
into the operations Of the Ice Trust, in or
der to enable the Attorney General to
secure sufficient evidence upon which to
base an action to annul the certificate of
authority issued the American Ice Com
pany to do business in this State. In
reaching the decision Justice Chester
follows the decision OF the Appellate Di-
vision in the Coal Trust cases few years
ago. holding that the appointment of a
referee under the antitrust law is ju-
dicial function.
The constitutionelity Of the substantive
provisions of the law Is not passed upon.
such action being unnecessary t. reach
conclusion on the question raised.
Justice Chester also dismisses the two
alternative writs of prohibition granted by
Justice Herrick at the request Of David
Wilcox, attorney for the Ice Trust, which
aimed to nravent tho aramination before
Referee Nussbaum of the officers and books
of the Ice Trust. Upon this point the JUS
tice agrees with the Attorney General. that
hi,;or cannnt i,s,. n,,t ~ snooio, ,.rr
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'e". 'He uo" pio|eene' pene
an appeal 10 tne Appellate DIVISION iron,
justice Chester decision Wnich appear
cannot be decided before fail, IN the oroi-
nary course OF events.
J0stice Chesters opinion toiiows:
The code OF civil procedure provides IN
section 2Gs2 that. except where special
provision therefor is otherwise made In
this article, an alternative writ OF prohi-
eltion can be granted only at special
term OF court
The following section t2o93) provides
that an alternative writ of prohibition may
be granted at term of the Appellate d.
vision of the Supreme Court, directed gen.
orally to any judge holding. or to hold. a
special term OF the same court, or directed
TO one or more judges OF the same couit
named therein, in any case where such a
writ may be issued out OF the Supreme
Court, directed to any other court, or to
judge thereof
1t Will be seen by these sections that,
while power is given to the special term
to grant writs OF prohibition. the excep-
ton specified in section 2O92 Stands in the
way OF the special term granting the writ
to run against another special term or an
other justice OF the same court
This power is expressly given to the
Appellate Division and not the special
term. The provisions OF the ccde are
therefore consistent with the rule Of
law that the writ can only run from su-
perio. to an inferior court or judicial tri-
bunal.
The question is therefore presented as
to whether the alternative writ granted by
the special term addressed to the referee
and TO the Attorney General runs against
an inferior court or tribunal or whether
this court at special term can lawfully
grant the absolute writ asked for, TO be
addressed TO the same persons.
The act under which the order to OK
anime these witnesses was procured (Chap
ter $50. laws OF 1899 provides. in section
4. that Whenever the Attorney General
has determined to commence an action or
proceeding under this chapter, he may
present to any justice OF the Supreme
Court an application in writing for an or
der directing the persons mentioned in the
Application to appear before justice OF
the Supreme Court, or a referee desig-
mated in such order, and answer such ques-
tions as may be put to them, or to any
Of them, and produce such papers, docu-
nents and books concerning any alleged
Illegal contract, arrangement, agreement,
or combination in violation of the chapter.
Tho justice or referee may adjourn
such examination from time to time, and
witnesses must attend accordingly Sec
ton Z provides that a referee appointed
as provided in this act possesses all the
powers and is subject TO all the duties OF
referee appointed under section lOlS, OF
the Code Of Civil Procedure, so far as
practicable. and may punish for contempt
witness duly served as prescribed in this
act. for ron-attendance or refusal to be
sworn or TO testify, OF TO produce BOOKS.
papers and documents IN the same manner
and to the same extent as reieree ap-
pointed to hear, try and determine an issue
OF fact or oil law.
Section lOiS, procedure above referred
TO- reiates 10 the powers Oh referee cPoii
the triai Oh an issue oeio,e hihl. ohuer
,ne powers conieffeu ny ms ses'ioi 'ne
IeieIee Iaheo lhe p'aeo VI .ou :, anu u,
mo .fiai Vi eause has euu'' 10 an
inc po"eis, WIN t1iei enc " tne lfiai Vi
couit a' spee'a' VI .'iai term.
10 chai sen WIN solheIH!ne moro IMAM
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