New-York tribune., 1900-11-21
ICE TRUST WINS VICTORY
OFFICERS NEED NOT APPEAR BEFORE
THE REFEREE.
APPELLATE DIVISION REsrRA1Ns THE At
ToRNEY-GENERAL FROM COMPEL
LING THEM TO DO SO.

Albany. Nov. 20.-Charles W. Morse and the
American Ice Company save won temporary
victory in the Appellate Division 1t decided
this morning to allow the writs asked by Mr.
Morse to issue. These will restrain the Attor-
ney-General from compelling the American Ice
Trust directors and officers to appear before the
referee appointed TO take testimony as to an
alleged trust The Court holds on the several
motions that the order of Justice Chester refus-
ing to vacate the order made by Justice Chase
appointing Referee Nussbaum was appealable
TO the Appellate Division and reverses the order
denying the motion to vacate and vacates the
order made by Justice Chase whereby Nuss-
baum was appointed. 1t is not thought that an
appeal will be made to the Court of Appeals un-
less certihcation therefor is made by the Appel-
late Division.
On May 2S 1900. Attorney-GenerAI Davies
presented TO the lower court a petition stating
that he had determined to begin an action in
the name of the people against the American
Ice Company, and against the persons who were
the officers. directors and managers. to restrain
Them from doing business in this State and to
aside the certificate from the Secretary of
State authorizing the company to do business
here He 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 Myer
Nussbaum appointed referee. On May %.
1900 the officers We're ordered to appear with
books and papers Appeals were taken and al
tentative writs of prohibition asked for.
but while Judge Herrick granted the latter,
Judge Chester vacated them. The ice company
officers appealed to the Appellate Division, and
the prohibitions while not granted by this
court. are stiI carried in force because the
entire proceedings cancelled by the dis
charge of the referee. Justice Kellogg, in de-
ciding that a corporation accused of being
trust has the right Of appeal from order to
appear before a referee under the so-called anti
trust law, says:
The great abuses to which the inquisitorial pow
delegated by laws of this character might lead
a necessity for judicial supervision by
a parry to the action to be brought by the Attor
ney-General and the other party is to be -eI ,tne
mary preparations are by the law to have at their
ordePs the rgt Of review by appeal seems emf
nently proper and contemplated by the code OF civil
procedure
in the most important matter. that denying
the petition Of Attorney General Davies for an
order directing Charles W. Morse and others to
appear before a referee, Justice Kellogg says
that the papers in the go to show that there
created in the American Ice Company an
ownership practical monopoly in the dis
posal of this article of common use in the New
York market. and adds:
think 1t may be conceded for the purpose OF dis
posing OF this appeal and the real question which
ments stated in the petition repugnant to the
provisions law of 1899 touching contracts
created tending TO create monopolies in articles
Of The question here relates TO the
remedy If the American Ice Company or any
other person corporation has unlawfully offended
against these provisions the offence is criminal ana
the law provides a penalty, and, so the act de-
clares4 with that have nothing to do But what
Of facts? The only remedy of this nature which
the 1a W contemplates is purely preventive OF IDe
formation and consummatton OF such agreements.
The act (Sectfon p authorizes only an action 80
restrain and prevent the making or consuIIfnd-
ho4.Snt any contract, etc"
The Egreenents here set forth not like the
continuing freight agreements Of railroads, which
the Interstate Commerce empowered the courts
here which can be put end to- for there is no
continuing contract, nothing but consumma ted
contract. ending practically in ownership The
Court be permitted TO fix the price which
sales may be made, 1t conhscate the prop
erty and distribute it. fail to see how any civil
action prevent restrain would here lie or
could be maintained for any purpose whatever In
of this law. The petition, however, apparently
10 overcome this obvious impossibility, says that
the action is to be brought ito yacate. annul and
aside the certificate procured allowing the
American Ice Company to do business in this State.
I have been unable TO find any authority for an
highest degree inquistorial, and giving an open
door the greatest abuses should at least be
confined strictly within the limits of objects its
wording points out
Justice Kellogg concludes that the petition
shows upon its face that the testimony Of wit
nesses and inspection Of books mentioned were
not necessary for the prosecution of the civil
action authorized by the law.