The sun., 1900-11-21
INTERESTING DECISION
IS GIVEN IN The
ICE TRUST Case
A Temporary Victory Scored by
Company in New
York Courts.
JUSTICE KELLOGG'S VIEWS
The Appellate Division Decides to
Allow the Issuance Of Writs
Asked for by Charles w.
Morse Restraining the
Attorney General.

Albany, Nov. 20.-Charles w. Morse
and the American Ice company have won
II temporary victory in the appellate divi-
sion. 1t has decided to allow the writS
asked by Mr.. Morse to issue. These will
restrain the attorney general from com
pelling the American ice trust directors
and officers to appear before the referee
appointed to take testimony as to an al
legged trust.
The court holds on the several motions
that the order of Justice Chester refus-
ing to yacatc the order made by Justice
Chase appointing Referee Nussbnum was
appeaable to the appellate division and
reverses the order denying the motion 10
vacatc and vacates the order made By
Justice Chase whereby Mr.. Nussbaum
was appointed.
Ii is not thought that an appeal will
he made to the court of appeals unless
ccrtiiication therefor is made by the np-
pellate division.
May 2S Attorney General Davies pre-
sented to the lower court n petition stat
ing that he had determined to COM
mence an action in the name Of the peo-
| pie versus the American Ice company
and against the persons who were the Of
ficers directors and managers to restrain
and prevent them doing in this state any
act toward or for the making or consum-
nation of contract, agreement or COM
mission and from doing business in the
state of New York and to vacate, annul
| and set aside the certificate procured
from the secretary Of state authorizing
the company to do business in the state
of New York and applied for an order to
examine among others Charles w. Morse
and Robert A. Scott under the provisions
of the "antitrust law"
Justice Chase granted the order, and
Hon. Myer Nussbaum was appointed
lrefcree. May 20 the officers were or
|dered to appear with books and papers
Appeals were taken. and alternate
writs of prohibition were asked for, but
while Judge Hcrrick granted the latte,
Judge Chester vacated them. The ice
company officers appealed to the appel
Hate division, and the prohibitions, while
not granted by this court are still carried
in force because the entire proceedings
are Cancelled BY the discharge Of the ref
cree.
what Justice Kellogg Says.
Justice Kellogg. ii deciding that cor
porntion accused Of being trust has th'
right Of appeal from nm order 10 appear
before a referee under the SO called anti
trust law. says:
The great abuses to which the in
quisitolia powers delegated by laws o
this character might lead show ncccs
sity for some judicial supervision by wuy
| of appeal. But the right TO review whcI
the order denies the application can b'
; no greater than when the order grants il
The appellant here is to he made a part!
, TO the action to be brought by the attor
ney general. and the other party is to b.
, the people, who apply for the order
There is to be contest, an action, ant
these litigants are in preparation. Th'
order sought for is to he used in forging
a weapon for attack. These preliminar!
, preparations are by the law to have a
, their inception judicial sanction, and, lik
all other like orders, the right of review
by appeal seems eminently proper ant
contemplated by the code of civil pro
n cedure."
Justice Kellogg concludes that the posi-
=, ton shows upon its face that the testi
? mony of witnesses and inspection o
: books mentioned were not necessary TO
L the prosecution of the civil action author
:. lied by the law.
Justice Smith, writing in support o
= Justice Kellogg, practically questions TIL
that the law, while probably effective t.
nrotect witness from prosecutions fo
offenscs against the state law, does no
IL assume to nor could it provide immunit
a for ofrcnses committed under the statut
. Of any other state or Of the United States
y If therefore these witnesses by their an
II swers would subject themselves TO prose
. cution for crimes under the federal law
? they are entitled to The protection bot
Of The state and federal constitutions.
"If the contract be vicious, the partie
thereto are criminally liable both unde
our state law and undcr the federal law
e no require these witnesses to swear t
i any facts which would establish the mar
Y ing Of the contract alleged IN the peti'io
y or connect them with its making OF eN'
1t cution would therefore be an infringe
Ie ment upon the rights assured to them b
A. constitution ~