The sun. [volume] (New York [N.Y.]) 1833-1916, 1900-06-28
BLOW AT THE ICE TRUST.
.yrsrIcE CHESTER DECIDES AGAINST
IT ON ALL FONTS.

-
a.. He,ds mat the Referee. In Tsis Case. Has
.J,dicial Powers and Acts In Place Of the
J,,ace wAs Appointed Him-The Alterns-
i've Writs Of Prohibition Are Dismissed.
ALBANY, Junea7.-Th Ice Trust was knocked
out completely to-day by a decision handed
Am nv Supreme Court Justice Alden Chester.
The Justice refused to vacate the order granted
hv Justice Chase. appointing Myer Nussbaum
"A a referee to conduct the inquiry into the
or.rations OF the Ice Trust. In order 70 enable
,hs Attorney-General to secure sufficient evil
dance upon which to base an action TO annul the
Certificate Of authority issued the American
Ice Company TO do business In this State.
Justice Chester also dismisses the two alter
native writs Of prohibition granted by Justice
usrrIck at the request Of David Wilcox, attor-
nav for the Ice Trust. which aimed TO prevent
,hn examination, before Referee Nussbaum.
a, ,he officers and books OF the Ice Trust. Upon
mi, point the Justice agrees with the Attorney
General. that an alternative or absolute writ
~ prohibition cannot issue out OF a special term.
Justice Chester holds that under the Anti
Trust law the referee here Is charged with
something more than a mere ministerial duty;
that he has the SAM power as would be possessed
nv the Justice who appointed him: in other
words, the referee stands in the place OF the
Justice, with reference to the examination.
The Justice had his choice under the law to
make the order requiring the witnesses TO APP
nsar before him or before a referee. designated
IN the order, for examination In either event,
=. n. a.. ma.,ar nj all times pending in Supreme
US ""
Court.
IT wa. hardly to be claimed. says the de-
cison, THAT a writ OF prohibition could
--.-rl, Ia grantad nv n .luStipp sitting at
.recial term to run against another Justice or
r.,I.- sn.,,a, term for the reason that such
ahouhe' op.oa - - t.,o.inr oo,r,
writ would nor De reierreu 10 III INFERIOR eou''
or tribunal, but to a branch OF the same court or
20 judicial officer O, equal rank and power as
-, ror,ha.o r.oso,
4, would be run AGAINST a referee appointed to
-. "a d.,orr,ins an issus for with reference
neH "hu "a ,.nas
to such uiai inc referees CONSTITUTES ""u s'a9
In the place Of the Court appointing him. Neither
viii il run against this re feree, if ! am correct
..n.In.,o, tho, with reference IN this
examination. he Is a judicial officer standing in
,ha nlaca and having the DO yers Of the Justice
annninting him. The same as does a referee ap-
npinted To try mi issue. IL he is not such judi
I oi nsSner than he Il siinply a ministerial oiicer
snnointed by The Justice TO perform ministerial
scts and IL IA Well settled that a writ of prohi-
bition cannot he used to prevent the perform
snce of such acts.
For This reason, also, II will not lie against
the Attorney General. With reference TO this
wv ha ~ an administrative aud not a
nASiniai officer But the writ here has been
9aIdraased 10 him simply as the REPRESENTATIVE
ni Inc party making the application for the
order ~ Examine and n IL cannot run against
he .iustioe or the referee ordered 10 take the
eIsmination it cannot run against him.
My conclusion that the special term had no
a. ahsolnta writ of prohibition in this case
cannor he granted at special term, renders it
unnecessary TO examine the constitutional
- thaaa r,t.
NE motions to set aside the two alternative
writs should therefore be granted. with COSTS"
Justice Chester follows the decision OF the
Appellate Division in the Coal Trust cases a
fen wears ago, and holds that the appointment
OF n referee under the Antitrust law Is "a Ju-
dicial junction.
1t Is urged" he says, that the act in Ques-
ton is unconstitutional because under it the
witness may be oompel d to give evidence
which can be used against him in a criminal
case. il seems to me that under the present
law. which In this respect is essentially differ
emit from the law of 1897. there Is no force in
his claim.
The law now provides in section Q that no
nerson shall be excused from answering any
questions that may be put to him, OF from pro-
ducinu any hooks. pauers or documents, on
tbe ground that the testimony or evidence, doc
lmentary or otherwise. required of him may
he N prosecuted in any criminal action or pro-
ceedinrs, or subjected TO any penalty or for
teiture. for or on account OF any transaction.
matter or thins concerning which he may tes-
~ or produce evidence documentary or
pointed in the order for his examination or in
obedience 10 the subpoena OF the court. or referee
acting under such order, or either Of them or
in any such case or proceeding. The protec-
ton Afforded by this section to IN, witness
against the consequence OF his testimony is
ample. Its terms are broad and compre--
hensive. Full and complete immunity Is given
to protect him against being prosecuted in any
criminal action or proceeding and against beng
subjected to any penalty or Iorlelture LOT or
on account of any evidence he may give. The
Legislature had the right TO give this immunity
rs a condition of exacting testimony that other
wise might tend 10 convict the witness OF a
crime. When testimony is given under such
circumstances the Courts will give full protec-
ton 10 the witness against its use in violation
Of the constitutional inhibition that no person
shall be compelled In any criminal case To he
a witness against himself. People VS.; Sharpe
i07. n. Y, AZ. People, vs.. Kelly. "a. y, VA
Because OF the decision OF the Court OF APP
peals that a matter of this kind Is not a special
proceeding and that any order made cannot
infect a substantial right OF The witness, and
for the further reason that iull immunity Is
now given To the witness, i do not deem II essen
tlal or proper for me To consider the other con-
stitutional questions urged on this branch of
the case"
As to the srficiency OF the petition used
on the application for the order to examine
the opinion says:
~ is stated by the Attorney-General In
hs application. in addition 10 the allegations
above mentioned In substance. that the two
available sources for the supply OF ice to the
Inhabitants Of the city of New York are the
Hudson River Valley and kennebec and Penob-
scot rivers In Maine; that prior TO March II,
lse0, more than 50 per cent. Of the available
ice and Of the ice plants along the Hudson
River and in the State of Maine were owned
or controlled by two corporations organized
under the laws of the State Of Maine, to wit,
the Knickerbocker Ice Company and the Con-