New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1900-06-28
A BLOW TO ICE TRUST.
JUSTICE CHESTER DECIDES AGAINST 1T
ON ALL POINTS

Albany June % (speciaD.-Riehard Croker and
his lieutenant Mayor Van Wyck of New-York,
as well as all other Tammany Hall stockholders
in the Ice Trust, may well read with consterna-
ton decision rendered by Justice Alden Ches
ter, of the Supreme Court. in the Ice Trust
eases to-day. Justice Chester dismisses the al
tentative writs issued by Justice Herrick
Gently. prohibiting the further examination of
any Of the officials of the American Ice Com
pany TO its affairs; and, second, he dismisses
a motion of the counsel of the American Ice
Company that an order OF Justice Chase, of the
Supreme Court, be vacated, under which Myer
Nussbaum appointed referee 10 take testi
mony regarding the operations of the American
Ice Company.
Substantially Justice Chester holds that the
Antitrust law of 1899, passed by the Repub
lican Legislature Of that year and signed by
Governor Roosevelt is a much stronger law than
the Antitrust law of 1897. which also
passed by a Republican Legislature and signed
by Republican Governor Frank S. Black. The
immediate effect Of the decision in Attorney
General Davies's favor is to permit that official
to proceed with the examination of Charles w.
Morse. the president OF the American Ice Com
pany. and other of its officials before Mr., Nuss-
baum. The decision is a decided victory for
Attorney General Davies. who instituted the
proceedings against the Ice Trust.
Justice Chester in his decision says: My con-
clusion is that the Special Term had no power
10 grant the alternative writs, and that an abso-
lutte writ Of prohibition in this case cannot be
granted at Special Term renders II unnecessary
TO examine the constitutional questions urged in
support Of these writs." That the conten-
ton Of Attorney General Davies.
NO LEGISLATIVE COERCION.
In that part Of his decision regarding the
motion made by David Wilcox. the counsel of
Charles W. Morse. to vacate the order permit
ting his examination before Mr.. Nussbaum, the
referee Justice Chester expresses opinion Of
much interest regarding the immunity Of wit
nesses under the Antitrust law Of 1899, and
the right of Judge Chase to grant an order per
hitting the examination Of witnesses acquaint-
co with the operations of the Ice Trust. Judge
Chester says:
The act Chapter GAO of the Laws of 1899
under which the order was obtained, was
enacted in place Of Chapter 1888 Of the Laws of
1897 and with respect TO matters Of procedure
contains important changes and notifications of
the earlier act The evident purpose OF these
changes and notifications was avoid some of
the dificulties in the enforcement Of the law
made apparent by decisions in what were known
as the Coal Trust cases, Where orderS TO eH-
anime witnesses under the law of 1897 were
vacated. See matter of Attorney General p
missed I55 n. v, al
AS appears by the reported case when the
matter was before me at Special Term, my de-
eisiOh Vacating the orders vas placed upon three
grounds:
First-That the act under which the orders
were granted, attempted 10 impose upon JUS
tees of the Supreme Court non judicial func-
tions.
Second-That the procedure sought to be au-
thorized infringement upon the constitu-
tienal rights and privileges of q witness charged
with a crime, beeaus= the act did not furnish
absolute immunity 10 the witness from proseeu-
ton, and
Third-Because Of the insufaciency of the pc
tition under which the order was granted. I'd.
q Misc 10l)
All three of these grounds are urged again
with great ability against the validity of the
order question here.
With respect 10 the first ground it may be
said that. while the Appellate Division affirmed
the order made by me at the Special Term. a
majority of The Justices disagreed with my con-
cluson to that ground, and held that the
duties imposed upon the Justices by the act
judicial in their nature. and were duties
which the Legislature had the right to impose
upon them I'd. % App Div, 2So) The con-
clUsion of the Appellate Division in this respect
is authority l am bound to follow, unless
the changes made by the Law of 1899 operate TO
remove this case from the birding authority of
that decision II is insisted that now there is no
opportunity for the exercise Of discretion by the
Justices because the present act makes it the
duty of the Justice to whom the application is
made TO grant the application, and provides
in place that the order shall be granted"
by him (Section a. while the former act pro-
Vided that If ii appeared to the satisfaction of
the Justice TO whom the application for the
order is made that such an order Is necessary
then such order should be granted tSeetion ~.
The claim is that under the present law the
Justice has discretion in the matter. and
must grant the order simply because IL is asked
for by the Attorney-GeneraL
INTERPRETATION OF THE ACT.
1t is true that the language Of the act looks
very much If the Legislature intended by it
10 provide for sort Of legislative mandamus
against the justice to whom the application for
a mandamus might be made. But, nOtwith-
standing, the law says that he shall grant the
order. think he is still charged with the duty
of exercising judicial discretion in determining
whether he shall grant il not a specified
case The language means no more than II the
act provided that the justice may" instead of
"shall' grant the order.
The Legislature is as powerless to coerce
judicial action as the courts are TO Issue man
each being independent Of the others within
their respective spheres of duty
I think, therefore, that the mandatory char
acter Of the language employed in the law to
the duty Of the Justice 10 grant the order in
question does not prevent him from exercising
his judicial discretion 10 grant or refuse it. and
Hhe Is therefore, notwithstanding the
changes in the law brought within the binding
authority of the decision OF the Appellate Di-
vision in the case referred TO lid y app. Div'
TREe RIGHT OF WITNESSES.
It is urged In the second place that the act in
question is unconstitutional, because under ii
the witness may be compelled to give evidence
which cen be used against him in a criminal
case II seems TO me that under the present
Law, which in this respect Is essentially different
from the law Of 1897, there is no force in this
slain.
The law now provides in Section that no
person shall be excused from answering any
questions that may be put 10 him. or from pro-
ducing any books, papers or documents, on the
ground that the testimony evidence, docu-
rnentary or otherwise, required OF him. may tend
TO incrirninate him, bat no person shall be prose
cuted in any criminal action or proceedings, or
subjected any penalty forfeiture, for
on account Of any transaction, matter or thing
evidence documentary or otherwise, before said
Justice or referee appointed in the order for