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changes and modifications was to avoid some of the difficulties in the enforcement of the law made apparent by decisions in what was known as the "Coal Trust Cases," where orders to examine witnesses under the law of 1897 were vacated. See Matter of Attorney-General, 21 Misc. Rep. 101; affd., 22 App. Div. 285; appeal dismissed, 155 N. Y. 441.

As appears by the reported case, when that matter was before me at Special Term, my decision vacating the orders was placed upon three grounds: First. That the act under which the orders were granted attempted to impose upon justices of the Supreme Court non-judicial functions. Second. That the procedure sought to be authorized was an infringement upon the constitutional rights and privileges of a witness charged with a crime, because the act did not furnish absolute immunity to the witness from prosecution, and Third. Because of the insufficiency of the petition under which the order was granted. Matter of Attorney-General, 21 Misc. Rep. 101.

All three of these grounds are urged again with great ability against the validity of the order in question here.

With respect to 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 conclusion as to that ground, and held that the duties imposed upon the justices by the act were judicial in their nature and were duties which the Legislature had the right to impose upon them. Matter of Attor ney-General, 22 App. Div. 285. The conclusion of the Appellate Division in this respect is an authority I am bound to follow, unless the changes made by the law of 1899 operate to remove this case from the binding authority of that decision. It 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 one place that "the order shall be granted" by him (§ 4), while the former act provided that if it 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. § 5. The claim is that under the present law the justice has no discretion in the matter, and must grant the order simply because it is asked for by the Attorney-General. It is true that the language of the act looks very much as if the Legislature intended by it to

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provide for a sort of legislative mandamus against the justice to whom the application for the order might be made. But notwithstanding the law says that he shall grant the order, I think he is still charged with the duty of exercising a judicial discretion in determining whether he should grant it or not in the specific The language means no more than if 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 a mandamus against the Governor or the Legislature, each being independent of either of the others within their respective spheres of duty. People ex rel. Broderick v. Morton, 156 N. Y. 136.

Similar language is employed in the Code of Civil Procedure with respect to the examination of a party to an action before trial, where it is provided in section 873, that the judge to whom the affidavit mentioned in section 872 is presented "must grant an order for the examination, if an action is pending." case arising under this clause the Court of Appeals has held that it did not deprive the judge of his judicial discretion in the matter. Jenkins v. Putnam, 106 N. Y. 272.

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I think, therefore, that the mandatory character of the language employed in the law as to the duty of the justice to grant the order in question does not prevent him from exercising his judicial discretion to grant or refuse it, and the case is therefore, notwithstanding the changes in the law, brought within the binding authority of the decision of the Appellate Division in the case referred to. Matter of Attorney-General, 22 App. Div. 285.

It is urged in the second place that the act in question is unconstitutional, because under it the witness may be compelled to give evidence which can be used against him in a criminal case.

It 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 claim.

The law now provides in section 6 that "No person shall be excused from answering any questions that may be put to him, or from producing any books, papers or documents, on the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him, but no person shall be prosecuted in any criminal action or proceedings, or subjected to any penalty or forfeiture, for or on account of any transaction, matter or thing

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concerning which he may testify, or produce evidence, documentary or otherwise, before said justice or referee appointed in the order for his examination, or in obedience to the subpoena of the court, or referee acting under such order, or either of them or in any such case or proceeding."

The protection afforded by this section to the witness against the consequences of his testimony is ample. Its terms are broad and comprehensive. Full and complete immunity is given to protect him against being prosecuted in any criminal action or proceeding and against being subjected to any penalty or forfeiture for or on account of any evidence he may give.

The Legislature had the right to give this immunity as a condition of exacting testimony that otherwise might tend to convict the witness of a crime. When testimony is given under such circumstances, the courts will give full protection to the witness against its use in violation of the constitutional inhibition that no person shall be compelled in any criminal case to be a witness against himself. People v. Sharp, 107 N. Y. 427; People ex rel. Hackley v. Kelly, 24 id. 74.

In the next place the sufficiency of the petition used on the application for the order to examine, is challenged.

The substantive provisions of the act are contained in the first two sections, which are as follows:

"SECTION 1. Every contract, agreement, arrangement or combination whereby a monopoly in the manufacture, production or sale in this state of any article or commodity of common use is or may be created, established or maintained, or whereby competition in this state in the supply or price of any such article or commodity is or may be restrained or prevented, or whereby for the purpose of creating, establishing or maintaining a monopoly within this state of the manufacture, production or sale of any such article or commodity, the free pursuit in this state of any lawful business, trade or occupation is or may be restricted or prevented, is hereby declared to be against public policy, illegal and void.

"Section 2. Every person or corporation, or any officer or agent thereof, who shall make or attempt to make or enter into any such contract, agreement, arrangement or combination, or who within this state shall do any act pursuant thereto, or in, toward or for the consummation thereof, wherever the same may have been made, is guilty of a misdemeanor, and on conviction thereof shall, if a

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natural person, be punished by a fine not exceeding five thousand dollars, or by imprisonment for not longer than one year, or by both such fine and imprisonment; and if a corporation, by a fine of not exceeding five thousand dollars."

The balance of the act relates generally to procedure.

The third section authorizes the Attorney-General to bring an action in the name of the people against any person or corporation, foreign or domestic to restrain the doing in this State of any act herein declared to be illegal, or any act toward or for the making or consummation of any contract, agreement, arrangement or combination herein prohibited, wherever the same may have been made.

Section 4, provides that whenever the Attorney-General has determined to commence an action under this chapter, he may present to any justice of the Supreme Court before beginning such action an application in writing for an order directing the persons mentioned in the application to appear before the justice or a referee designated in the order for examination. The application may simply show upon the information and belief of the AttorneyGeneral that the testimony of such person is material and necessary. This section also provides that the provisions of the Code of Civil Procedure relating to the application for an order for the examination of witnesses before the commencement of an action shall not apply. In this respect the law is different from that of 1897, under which these provisions of the Code were made applicable so far as practicable.

Under the statute as it now stands the only things the AttorneyGeneral is expressly required to state in his application are that he has determined and intends to bring an action under the provisions of the law, and that he is informed and believes that the testimony of the persons mentioned in the application is material and necessary. These facts the Attorney-General has specifically alleged, so that in both of these respects the law has been complied with.

But it is insisted that the facts alleged relating to the contract, agreement or combination claimed to be unlawful are not sufficient to bring the case within the provisions of the substantive provisions of the statute contained in sections 1 and 2.

It is stated by the Attorney-General in his application, in addition to the allegations above mentioned, in substance, that the two available sources for the supply of ice to the inhabitants of the city

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of New York are the Hudson river valley and the Kennebec and Penobscot rivers in Maine; that prior to March 11, 1899, more than eighty 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 Consolidated Ice Company; that the Consolidated Ice Company prior to March 11, 1899, controlled about ninety per cent. of the wholesale and retail ice business in the city of New York and the Knickerbocker Ice Company about eighty per cent. of the wholesale and retail ice trade in the cities of Philadelphia, Baltimore and Washington; that these two corporations acting together, thus had a virtual monopoly of the ice supply available to the inhabitants of the city of New York, and acting together had it in their power to fix the price of ice arbitrarily; that prior to March 11, 1899, the said Knickerbocker Ice Company and Consolidated Ice Company agreed to combine their interests and thereby control by one com pany and one management the entire ice producing territory for the purpose of creating a monopoly in the ice business in various cities, particularly the city of New York; and pursuant to such understanding and agreement the said American Ice Company was organized under the laws of the State of New Jersey on March 11, 1899, with an authorized capital of $60,000,000, divided equally into common and preferred shares; that pursuant to such understanding or agreement, and in consummation thereof the American Ice Company immediately thereafter acquired title to more than ninety per cent. of the total capital stock of the said Knickerbocker Ice Company, and the Consolidated Ice Company by an arrangement whereby shares of the American Ice Company, although without any value and representing no property were exchanged share for share for stock of said two companies, said arrangement or agreement thus vesting in one body, to wit, the board of directors of the American Ice Company, the control of the said two constituent corporations, and thereby effecting a monopoly in the supply of ice to the inhabitants of the city of New York and destroying competition in the production, supply and sale of ice in the city of New York, and that as a direct result of such combination the American Ice Company raised the price of ice in the city of New York 100 per cent. over the prices prevailing during the two preceding years for the sole reason of providing means for pay

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