New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1900-06-03
TRUST INQUIRY BLOCKED.
WRITS OF PROHIBITION FOR ICE COM
PANY'S OFFICIALS.
CONsTITUTIONALITY OF ANTITRUST LAW
MUST FIRST BE DETERMINED
THE MAYOR MAY ESCAPE.
Try TELEGRAPH TO THE TRIBUNE. !

Albany June 2-The Tammany Ice Trust le-
gally known as the American Ice Company. has
resolved 70 test the constitutiOnality of the
Antitrust law of this State introduced by
Senator Donnelly, of Tammany Hall. in 1899.
and also is seeking to prevent any further ex-
animation of Charles w Morse and other Off
cials Of the American Ice Company before Myer
NLssbaUm, the referee appointed to take testi-
mony regarding the acts of the Ice Trust until
the constitutionality of the Antitrust law is
determined. Writs Of prohibition have been is
sued by Judge D. Cady Herrick of the Supreme
Court. which. for time at least, deprives At
torney-General Davies of all authority to ex-
anime witnesses President Morse or thes Off
cials of the American Ice Company before Mr..
Nussbaum concerning the acts of the company,
and ii is within the right of Mayor Van Wyck,
John F. Carroll and other Tammany Hall Off
cials. if summoned before Mr. Nussbaum. TO
apply for other similar writs of prohibition.
There is therefore. a possibility of Mr.. Nuss-
baum soon having no witnesses of Importance
before him until the constitutionality of the
Antitrust law Of 1899 is determined.
David Wilcox, the chief counsel of the Ameri-
can Ice Company. appeared before Judge Her
rick here this afternoon and applied for two
alternative writs Of prohibition, directed to At
tOrney-General Davies and Myer Nussbaum,
Cne prohibiting the examination Of Mr.. Morse
as a witness. and the second prohibiting the pro-
ducton of the books of the American Ice Com
pany, or the examination Of any Of the other
officers Of the American Ice Company, as wit
nesses in this case. Mr.. Wilcox also desired TO
stay the whole proceedings before Mr.. Nuss-
baum, by obtaining writs prohibiting the ex-
animation of any more witnesses in relation 10
the affairs Of the American Ice Company. but
Judge Herrick declined to grant this wholesale
order, and limited the wrtts TO Mr.. Morse and to
the officers of the American Ice Company.
LOOPHOLE FOR TAMMANY.
Thus Mayor Van Wyck and John F. Carroll
can still be subject to examination before Mr.
NussbaUm. and there are plenty Of other wit
nesses who can be examined until the wrtts of
prohibition are determined The writ in rela-
ton 10 Mr. Morse, however. is issued in his in
dividual capacity. and it is possible that Mayor
Van Wyck and John F. Carroll as individuals
could obtain similar writs if summoned as wit
nesses if they should apply for them on the
same ground. that they wish 10 test the con-
stitutionality OF the Antitrust law. The spec
tacle Of Mayor Van Wyck. Augustus Van Wycz
John F Carroll and other Tammary Hall men
testing the cOnstitutionality of an alleged Tam
many Antitrust law would be both amusinx
and edifying.
Justice Herrick granted the application Of Mr.
Wilcox on the ground that a witness has the
IiSHt 10 test the ConSLlIuClOnauIy or the process
by which he is brought before court. This is
not a new position for Judge Herrick TO take.
In 1897, when the Antitrust law Of that year
was tested, in giving an opinion touching that
law, he said:
cannot concur with Mr.. Justice Landon in
holding that witness cannot question the con-
stltutionality of the act the legality Of the
proceedings by which it is proposed to bring
the witness before the court referee. This
is not case where witness raises question
as TO whether the party subppnaing him has or
has not case, but where he raises the question
as to whether the law under which the proceed
tngs are taken is or is not in part a valid law
and also whether the proceedings to bring him
before the court referee have been legally
taken under such law; just as he might question
the regularity Of attachment proceedings
brought against him TO compel his attendance
in court in any action.
The writs of prohibition issued by Judge Her
rick to-day are retUrnabe at a special term, 10
be held by Justice Chester Of the Supreme Court,
June g. He is the Justice of the Supreme
Court. ii will he remembered, before whom the
former cases TO test the Antitrust law Of 1897
Of prohibition issued by Justice Herrick decide
nothing, they simply act as orders to show cause
why q writ should not be granted, and by this
means the petitioners hope 70 test the legality
Of the Donneuy law Of 1899. The wrts are
made returnabIe at the first term held in the
Judicial District; that if either party desires
appeal from the decision then made, such
appeal be brought at the adjourned term
of the Appellate Division Of the Supreme Court
Of this Department, which IS TO be held here on
June 2S.