New-York tribune., 1907-07-30
COURT CHECKS JACKSON
CAN'T BRING GAS SUIT.
Nothing to Sho7C Consolidated Illegal
Combination, Says Mccall.

cor-4 bv Deputy Attorney General De Ford His
o,ition for permission TO bring a suit to annul
~ corporate existence Of the Consolidated Gas
connany was denied by Justice Mccall in Part
!, ~ the ground that Mr. Jackson had not shown
.hot the company had acted illegally in combin
,,g its constituent companies.
IN she afternoon Mr.. De Ford argued before
rrs,ice Hendrick in Part l. Special Term. against
tho motion of the counsel for the Western Union
,rd Postal Telegraph companies that the in
,rnctor restraining him from examining officers
IF those companies be made permanent. He also
argued in the same part his petition TO be per-
-nItted 20 bring suit to dissolve the Interoorough-
Metropolitan merger. In both these latter cases
briefs were fled and decision was reserved.
The actions yesterday presumably mark the
end for the present. of the Attorney Generals
r.neral assault on corporations. Mr. De Ford
udu sail to-day on the Kaiser Wilhelm der
Crosse for six weeks vacation He said last
might that he expected to get all the suits under
way next October
In handing down his decision on the Consoli-
dated Gas application Justice Mccall said he be-
ijeyed that the New York Gas Light Company,
fine Manhattan Gas Light Company the Metro
poitan Gas Light Company OF the City of New
York the Knickerbocker Gas Light Company
and the Harlem Gas Light Company in 1854
agreed TO q consolidation OF their interests in
accordance With the terms OF an act passed in
that year. The justice said that he thought the
expiration OF city permits TO open streets would
not affect the validity OF the greater power con-
terred upon the Consolidated by the state. After
pointing out that the companies had not been
iutsrfered with by the authorities IN the exer-
else Of these powers which the Attorney General
said had lapsed, Justice Mccall continued:
To use houlely smile IN illustration Of the nat
ure Of the application in reference this particular
feature, It would be If a child. having sought
ard a 10 do
thing, and then, feeling that the permission thus
granted was in conflict with other orders and di-
rectons o; the parent previously given went 10 him
snd called his attention TO the same whereupon
The father Feiterating the permission, instructed
The child and relieved him OF his doubt. But when
The child did precisely what the permission origi-
asIy granted, and under the appreciation, IL not
the guidance and instruction, Of the parent the
parent sought authority strangle his offspring
FOR the act he directed the child perform and the
doing Of which he approved. II that IS not pre-
csely what this application is the equivalent of
an greatly in error.
While this decision comes as a setback to the
Attorney Generals office. Mr.. De Ford declared
yesterday that he was confident that in time he
would bring the Consolidated TO trial James N.
Beck OF the law firm of shearman & Sterling.
representing the company. referred TO the de-
cisOn as being in accord with the report OF
Master Masten, who decided the company could
not he compelled to sell gas at the S0-cent rate.
The decision of the Supreme Court" said Mr..
the Consolidated Gas Company. Counsel for the
company has hitherto refrained from any COM
ment on the reckless and widespread assertions
that have been made from time TO time that II
Gid not possess any existing franchises. It is
gratifying 10 the company to know that in the
first case in the courts OF this state in which
the question has been fairly presented and di-
rectly passed on the validity OF its franchises
has been in all points sustained. The decision
decides the case which the city has brought TO
-F.1N
which the Attorney General. without waiting
for this decision has seen fit to institute to IN
validate the same franchises on precisely similar
grounds"
When the Western Union and Postal Tele-
graph companies case came UP before Justice
Eendrick later IN the day there was a great
array Of counsel for the applicants, who wished
10 procure a continuance of the injunction re-
straining the referee appointed on Mr.. Jacksons
application from examining officers Of the COM
panes The Western Unions forces were made
up Of Henry D Esterbrook. solicitor; G. H.
Fearons. attorney, and F. r. Stark, counsel.
William ". Cook appeared as general counsel
for the Postal.
Under the law the Attorney General was
obliged 10 refer 70 kilograms as articles or
commodity 70 bring his action. Mr.. Ester
brook, who began the argument for the compa-
mes. quoted decisions of the United States Su-
rreme Court and the Supreme Court Of Texas
as well the definition in the STANDARD DC
tonary 20 prove that an article Of commodity
must be something that can be bought and SOLD
What do you hold a telegram TO be?' asked
the court
Service, your honor Just as though l hired
man TO carry my trunk responded Mr.. Es-
terbrook
He then said that if a telegraph company sold
telegram IL would be subject 10 prosecution
Under the criminal code. The company does not
even buy the electric current. but "borrows 1t
fom nature for q brief space Of time and then
fsturns il unTnpaired.' He also said that be-
case two Independent companies happened 10
toFance their rates at the same time II was no
EoN Of a combination.
NJ Jackson went over in detail his a!ega-
uonsr made public at the time he filed his pc
uuon, that the companies had been Independent
uni January !. 1907. but on that date as the
result Of illegal combination, they mad ad-
'snced rates in restraint OF trade. he hled MS
nlet and the other counsel promised TO DO 80
as soon as they could get their briefs printed
In the Interborough-M h-Metropolitan case. also
heard before Justice Hendrick. the company was
represented by Delaney Nicol. Paul ID. era
'elh James L. Quackenbush and Daniel Pat-
oerson. Mr. De Ford had as his lone assistant
Deputy Attorney General Firestone. Asking for
'he permission to bring suit against the Inter
oofugh-Metropolitan, Mr.. De Ford described the
-il'n Of the Interborough, which, ne sald. was
UoAtroned by August Belmont, with the Metro
poA'an, controlled by Thomas F. Ryan Coh-
u'hg' ne said that, by FORMING 1o "e
oonpany Ryan, Belmont and their associates
were "contriving and intending unlawiuhy 10
restrain the trade and business ana inJurlousiy
70 Affect the trade and business OF the transpor-
~uon Of passengers in the boroughs OF Manhat-
an and The Bronx. and TO create monopoiy
GIG prevent competition"
Justice Hendrick, after listening 10 MT De
Vfo Tor half hour, asked him IL the srouliuS
=, = which he asked TO bring suit against t,ie
marlborough Metropolitan were not efactiy tiie
sehe as the grounds in his application regaroihs