Supreme Court, June, 1900. [Vol. 32. judge of the Supreme Court, a power which has been reserved to the Appellate Division alone. Code C. P., §§ 2092, 2093. 3. Same-Nor against the Attorney-General, an administrative officer in such a matter. The position of the Attorney-General, in regard to such an examination, is that of an administrative, and not that of a judicial, officer, and, therefore, an alternative writ prohibiting him from proceeding with the examination will not be issued, as he cannot in this manner be prevented from performing ministerial acts. 4. Same Constitutionality - Non-judicial duties not imposed upon court. Chapter 690 of the Laws of 1899, a re-enactment of chapter 383 of the Laws of 1897, except as to certain matters of procedure, is not unconstitutional as imposing upon a justice of the Supreme Court non-judicial functions. 5. Same Discretion of justice to grant order of examination. The phraseology of section 4 of the statute that "it shall be the duty of the justice to grant the application," and that "the order shall be granted" upon the application of the Attorney-General, does not compel the justice, to whom application is made for the order, to grant it, and he still has discretion to grant or refuse it. 6. Same Immunity of witnesses. The provisions of section 6 of the statute afford a witness full and complete immunity against the consequences of his testimony. 7. Same Formal allegations of petition. The only allegations, besides the violations of the statute, which the Attorney-General need make in his application for the order, are that he intends to bring an action under the statute, and that he is informed and believes that the testimony of the persons mentioned in the application is material and necessary. 8. Same -Sufficient allegations of a monopoly in ice. A petition, which alleges the exchange of the stock of a newlycreated foreign corporation for 90 per cent. of all the stock of two other foreign corporations, themselves controlling nearly all the available sources for supplying ice to New York city, having the intent and result of placing the virtual control of ice in said city in the newly-created foreign corporation, and actually doubling the price, held to state a violation of the statute, although it was not alleged that the unlawful combination was made in the State of New York, or that the available sources of supply, combined, were all situated Misc.] Supreme Court, June, 1900. in the State, and although the combination was made before chapter 690 of the Laws of 1899 went into effect, it having been made after chapter 383 of the Laws of 1897 went into effect, a statute forbidding the same substantive acts as were condemned by the statute of 1899. 9. Same Purchase by one corporation of nearly all the stock of other similar corporations illegal, if intended thereby to create а monopoly. While the Stock Corporation Law (L. 1892, ch. 688, § 40, as amended), permits one corporation to purchase the stock of another (although the result may be to destroy competition), such a purchase is violative of the statute of 1899, if, as alleged by the Attorney-General, it was made for the purpose of creating a monopoly in an article or commodity of common use, and destroying competition as to its supply or price. MOTION to vacate an order requiring Charles W. Morse and certain other persons to appear before a referee to be examined pursuant to the provisions of chapter 690, Laws of 1899, and requiring them to produce certain books and papers mentioned in the order. Also return of alternative writs prohibiting the execution of said order. Daly Hoyt & Mason (David Willcox and William H. Rand, Jr., of counsel), for Charles W. Morse and the American Ice Company. John C. Davies, Attorney-General (Edward P. Coyne, of counsel), for the People. CHESTER, J. A motion is made to vacate an order of Mr. Justice Chase, requiring Charles W. Morse and certain other persons therein mentioned to appear before Myer Nussbaum, Esq., a referee therein appointed, to be examined pursuant to the provisions of chapter 690, Laws of 1899, and requiring them to produce certain books and papers mentioned in the order. There are also applications for two absolute writs of prohibition made on the return of alternative writs granted at Special Term, to restrain any further proceedings under the order of Justice Chase. One of these writs is applied for by Charles W. Morse, the other by the American Ice Company. All three matters have been argued together. The Attorney-General, however, makes a preliminary motion to set aside the alternative writs of prohibition on the ground, Supreme Court, June, 1900. [Vol. 32. among others, that the court at Special Term had no power to grant them. The office of the writ is to restrain subordinate courts and inferior judicial tribunals of every kind from exceeding their jurisdiction. Quimbo Appo v. People, 20 N. Y. 531; 16 Ency. of Pl. & Pr. 1094. The Code of Civil Procedure provides in section 2092, that "Except where special provision therefor is otherwise made in this article, an alternative writ of prohibition can be granted only at a special term of the court." The following section (2093) provides that " An alternative writ of prohibition may be granted at a term of the appellate division of the supreme court only, directed generally to any judge holding, or to hold, a special term of the same court, or directed to one or more judges of the same court, named therein, in any case where such a writ may be issued out of the supreme court, directed to any other court, or to a judge thereof." It will be seen by these sections that while power is given to the Special Term to grant writs of prohibition the exception specified in section 2092, stands in the way of the Special Term granting the writ to run against another special term or another justice of the same court. This power is expressly given to the Appellate Division and not to the Special Term. The provisions of the Code are therefore consistent with the rule of law that the writ can only run from a superior to an inferior court or judicial tribunal. The question is, therefore, presented as to whether the alternative writ granted by the special term addressed to the referee and to the Attorney-General runs against an inferior court or tribunal or whether this court at Special Term can lawfully grant the absolute writ asked for, to be addressed to the same persons? * * The act under which the order to examine these witnesses was procured (chapter 690, Laws of 1899), provides in section 4, that "Whenever the attorney-general has determined to commence an action or proceeding under this chapter, he may present to any justice of the supreme court an application in writing, for an order directing the persons mentioned in the application to appear before a justice of the supreme court, or a referee designated in such order, and answer such questions as may be put to them or to any of them, and produce such papers, documents and books concerning any alleged illegal contract, arrangement, agree Misc.] Supreme Court, June, 1900. * ment or combination in violation of this chapter. The justice or referee may adjourn such examination from time. to time and witnesses must attend accordingly." Section 7 provides that "A referee appointed as provided in this act possesses all the powers and is subject to all the duties of a referee appointed under section one thousand and eighteen of the code of civil procedure, so far as practicable, and may punish for contempt a witness duly served as prescribed in this act for non-attendance or refusal to be sworn or to testify, or to produce books, papers and documents in the same manner, and to the same extent as a referee appointed to hear, try and determine an issue of fact or of law." * * * Section 1018 of the Code of Civil Procedure above referred to relates to the powers of a referee upon the trial of an issue before him. Under the powers conferred by this section the referee takes the place of the court, and in the trial of a cause has substantially all the powers, with reference to the trial, of a court at a special or trial term. Schuyler v. Smith, 51 N. Y. 309. Under the law I think the referee here is charged with something more than a mere ministerial duty. In my opinion he is charged with the judicial duty of ruling upon the admissibility of testimony, notwithstanding the provision in the statute requiring the witnesses to answer such questions as may be put to them, for the reason that the alleged materiality and necessity of the offered testimony lies at the foundation of the right to ask for the order to examine, and it must, therefore, be incumbent upon the officer charged with the duty of taking the examination, whether he be the justice or the referee, to determine in the first instance as to such materiality and necessity. While this is contrary to the usual rule concerning the powers of a referee appointed simply to take testimony, I think the legislative intent in conferring upon a referee appointed under this act, all the powers and making him subject to all the duties, of one appointed under section 1018, so far as practicable, was to confer upon him the same powers in relation to the examination, as would be possessed by the justice, if he instead had conducted it; in other words to have the referee stand in the place of the justice with reference to the examination. If this is not so, this grant of power is meaningless. The justice had his choice under the law to make the order requiring the witnesses to appear before him or before a referee Supreme Court, June, 1900. [Vol. 32. designated in the order, for examination. In either event it is a matter at all times pending in the Supreme Court. It will hardly be claimed that a writ of prohibition could properly be granted by a justice sitting at Special Term to run against another justice or another Special Term for the reason that such writ would not be directed to an inferior court or tribunal, but to a branch of the same court or to a judicial officer of equal rank and power as the one granting the writ. For the same reason it would not run against a referee appointed to hear and determine an issue, for with reference to such trial the referee constitutes and stands in the place of the court appointing him. Neither will it run against this referee, if I am correct in my conclusions, that, with reference to this examination, he is a judicial officer, standing in the place and having the powers of the justice appointing him, the same as does a referee appointed to try an issue. If he is not such judicial officer, then he is simply a ministerial officer appointed by the justice to perform ministerial acts, and it is well settled that a writ of prohibition cannot be used to prevent the performance of such acts. Thomson v. Tracy, 60 N. Y. 31; 16 Ency. of Pl. & Pr. 1102. For this reason it will not lie against the Attorney-General. With reference to this examination he is an administrative and not a judicial officer. But the writ here has been addressed to him simply as the representative of the party (i. e. the People), making the application for the order to examine, and if it cannot run against the justice or the referee ordered to take the examination, it cannot run against him. My conclusion that the Special Term had no power to grant the alternative writs, and that an absolute writ of prohibition in this case cannot be granted at Special Term, renders it unnecessary to examine the constitutional questions urged in support of these writs. The motions to set aside the two alternative writs should, therefore, be granted with costs. The motion made by Charles W. Morse, to vacate the order to examine him remains to be considered. The Act, chapter 690, Laws of 1899, under which the order was obtained, was enacted in place of chapter 383, Laws of 1897, and with respect to matters of procedure contains important changes and modifications of the earlier act. The evident purpose of these |