The times. [volume] (Washington [D.C.]) 1897-1901, 1900-06-14
THE NEW YORK ICE TRUST.


Hearing at Albany on the Apposnt-
Rsent of Referee.
ALBANY. June 13.-Arguments were
had before Supreme Court Justice Alden
Chester today on Justice Smyth's order
to show cause why the order issued by
Justice Chase appointing Referee Nuss-
baum under the Donnelly Antitrust law
to examine the Officers and stockholders
OF the ice company should not be vacated
Why the two writs of prohibition issued
by Justice Herrick against the examina-
ton of the officers and books OF the ice
company before Referee Nussbaum should
not be made permanent was also argued
before Justice Chester. Judge Edward
Coyne appeared for the Attorney General
and B.. F. Einstein for William r. Hearst
and David Wilcox and William Il. Rand.
Jr, of DAILY. Hoyt & Mason, represented
the American Ice Company.
The attorneys for the ice company pri-
marily based these applications upon the
ground that the Donneily Antitrust law
Of last year was unconstitutional Just as
was the Lexow anti-mouster law OF 1891.
the constitutional defects Of which. pointed
ont by the Court Of Appeals. were sup
posed to have been corrected by the Don
nelly law Judge Coyne, In opening MS
argument, declared that the writs OK pro-
hibiticn were State writs and intended to
restrain inferior courts from doing what
| thew had no right to do. whereas the other
| order was intended to interfere with
! co-ordiuate branch OF the court in the
person of the referee. who, for the pur-
| poses of this action. had also the powers OF
| Supreme Court Justice.
Mr. Wilcox combated this contention
He declared that the petition OF the Az
| torney General, upon which, Justice Chase
| based the appointment OF Referee Nuss-
baum. did not show the facts specfned IN
| the statute, and that the order appointing
! the referee required the production Oh
| numerous papers which did not concern
| the Allegations Of the petitions, and Tor
those. reasons was unauthorized by law.
| He also insisted that the procedure sought
| to be established by the DOnneify law was
| unconstitutional Justice Chester said ne
would hear arguments on the merits OIL
| the entire controversy. reservfng MS ae-
| cision upon the questions raised regarding
f, the effectiveness Of the papers and pro-
ceedings.
| THE petition does not show any vioia-
! ton Of the statute" said Mr. wilcox, ana
I the Attorney General has determined 10
| commence an action other than that au-
| thorized by law The order Of Justice
| Chase requires the production Of numerous
| papers. which have no relation to the
combination alleged. The procedure sought
| to be established by the Donneily law Is
unconstitutional where witness Is re-
uuired to submit to a general examination
by an administrative officer regarding his
private affairs, because such deprrves
person of liberty without due process oil
law
1.-THE referee proceedings under this
law" continued Mr.. Wilcox. ARE not judi
cial in character, but merely an inquisi-
| ton conducted by the Attorney General
| They have not even the purpose OF aiding
him in determining whether or not u
bring an action or proceeding as was tns
case under the Lexow law. The witness l:
dragged before the referee without notice
He is required not to answer relevant ant
material questions as the Lexow law pre-
vided,' but such questions as rlay be pu
him concerning any alleged illegal con
trac. agreement or combination. Tn.
referee is to determine what questions thu
witness shall answer and is authorized Il
punish for contempt. Any person selected
nv the Attorney General is required Il
disclose his private affairs without an.
limitation as to the extent OF The dis
closure. II he declines to do so, he is sub
jected to punishment for contempt withou
the aid of counsel to advise him. Mani
testify. the statute deprives the witness o
his liberty without due process OF Law
The Donnelly law also is unconstitutional
becauge it compels the witnesses to CIV
evidence which can be used against then
| in criminal case.
The provisions Of the Donnelly iav
. regarding procedure are unconstitutional,
said Mr.. Wilcox, because they attsTpt Il
, impose upon the justices of the Supreme
, Court non-iudicial functions where tn
, appointment OF referee by a Suprem
Court Justice is provided for. The au
thorities rule that the Legislature eanno
impose upon the courts the duty OF adm
| administrative officers IN carrying On IN
| yestigations not having the character {
judicial proceedings. The provision in Tn
statute comforting upon the referee powe
to summon witnesses and punish them lo
), contempt is also unconstitutional. IN
4 | referee docs not act in a judicial capac1t.
| hut merely aids an administrative ofheer-
the ATTORNEY Generaf-in gathering II
formation. The power to punish for cGf
: tempt cannot be conferred upon an az
!; minisrrative officer. and in this case IL
referees powers are really conferred hpc
the Attorney General The latter has IL
- absolute right to initiate the proceedif
: and contract its course.
q ..It is as essential a part OF English al
Il American constitutional law that iuquis
torial Investigations regarding aHeg
n crime shall be made only by the grad Jul
. as that an accused pesscn sail be convic
q ed only by a verdict OF twelve juror
q Proceedings upon the informal len OF q
q prosecutor have no place in AnSio-Ssxi
9 jurisprudence, except in preliminary ex.r
Q nations before magistrate. where t
j. accused is advised OF the nature OF q
d charge, is entitled to counsel and to me-
: or refrain from making any statemer
" This attempt to establish special t-quis
= ticn canrot avail over the guarantees
personal rights contained in the witt
ia | constitutions of the country.
,r