The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-01-15

6olO Jn6t ne WlbneO 70 ueuy bno uutn VI IumOI
which had appeared In some Of the morning pa
pers to the effect that the District Attorney asked
for o consultation with his colleagues ON the
previous day, for the purpose OF taking measures
for the removal OF Of the jurors, Mr.. Williams,
on the ground Of his being member OF the Ameri-
Gus Club. The prosecution were satisfied that Mr..
Williams was fair and just man.
THE EvIDENCE-MR sToRRs ON TIE sTAND--AN IN
TERRUPTION.
| The first witness called was Mr.. Richard A.
Storrs, the Deputy Comptroller. The witness hav'
| ing answered an initiatory question,
FIRST LEGAL OBJECTION.
Mr.. Field rose and moved that the people be re-
quested, as preliminary to establish the omclai
position which 1t is claimed In the indictment the
| accused held. The defence proposed to snow tnat
he never held the Official position IN question
Mr.. Peckham offered the statute Greaune tne
Board OF Audit in evidence to establish the posi-
| ton held by Mr.. Tweed -
| Mr. Field-Very well. We object. Now, chapter
$50 OF the OF 1870 Is an act entitled IAN act
the county OF New York" passed April 8, 1870. At
the beginning OF the statute, Your Honor knows
shall be predxed to the statute laws the names Of
the Governor and other officials, including SEN
ators" Here then. Ia the name OF william M.
Tweed as Senator, the term to expire with the
year 1870, and not before. Now, our position is
this while 1t Is very clear that while there is in
fourth section is to be treated much blank and
to be stricken from the statute altogether as being
beyond the competency OF the Legislature pass It
or to give any ofhcial position or trust under it.
There are various objections to the statute In
respect to ITS consttntiSnalty or alleged uncon-
and think 1t due to the Court as well as to the
counsel on the other side and TO Witnesses that
should state them all, and proceed, perhaps at
the risk OF wearying you. shall be brief as pos
sible, however, but the number OF questions, and,
quire that should fully develop the views counsel
for the defendant entertain OF them-the views to
ton and consultation, 1t is OF very little conse
quence IN which order proceed, but will for the
sake OF convenience first take that objection which
goes to show that there was no such office ever
created. We answer the objection that may be
taken to this that the defendant could have held
the office de acto If he had not been at the time
i officer de jure by showing that the Legislature
never did create such Office, and then there Is
first position is that it is twothrds bin ana that
that fact should be certified, and without such
certificate no bill or act IAN be deemed to have
is section OF the first article of the constitution,
requiring twO-thrd vote upon every bill appro
Then there s' Is section Of the Revised Statutes
which declares that no bill shall be deemed to have
the presiding officers of the two houses We start,
then, with the position and with the memorandum
and there being nothing to indicate that blere was
twO-thirds vote; that this bill, on the fourth
ton OF which this indictment is found Is not to be
regarded as twO-third act. The bill was two
third bill, and If not passed by vote Of wO-Ghrds
OF the members OF each house 1t Is no law accord
ing to the constitution and statutes Then the only
remaining question Is this, is the bill within the
category OF the ninth section Was the bill an act
poses Now luckily, we have a decision upon that
very point IN the third OF Keenan, Now Your
the Court OF Appeals respecting the powers of the
Legislature for taxation, especially local taxation.
II was one time held that the legislature could not
impose a tax on lOcaties-nO tn X except what was
general throughout the State; but It was held
finally that the Legislature had the power OF
toxyn IN SStnA
it was solely within their competence to determine
New York, the State OF New York or the county Of
Niagara; that they could tax any locality or the
whole of the state; that no Courtcoud inquire
the taxes were to be raised. II was objected to
very strentouAy that the legislature could not
the debt Of the locality. But Chief Justice be6t3
ss The sss {s!sa e a Hs asss
had the power and that there was no qualification
or restriction upon it except this-that the bill
must be passed by a twO-thirds vote OF all the
ment which we offer to show that the fourth
section is no law. The constitution has declared
our view, whatever may be said about expediency
or any other consideration. The next objection Is
t9isthat it is in direct
ticle Of the constitution mo member
OF the Legislature shall receive any civil appoint
Senate or from the Legislature during the time for
which he shall be elected and all and such appoint.
ments and all votes given for any such member for
any such office or appointment shall be void The
policy Of the Legislature was to prevent the in
nuence OF its members being used in favor OF
themselves. Mr.. Tweed Is charged with exercising
the power OF Auditor, and If ne was not legally in
vested with the office the allegation is not con.
sistent and
THE INDICTMENT IS GOOD FOR NOTHING
am simply considering the question whether as
and If the section has any power at all 1t is to be
applied to this case, wnere the counsel for the
prosecution themselves charge the defendant with
being public officer and as such charge him with
neglect and misconduct. refer you to two cases
to establish the position now take that this was
an appointment by the Legislature to Mr.. Tweed
There is the case OF the People vs.. Blake
lBarbeur's Reports, 4s) and the United
states that the Legislature cannot place a person
In position like that held by the defendant in
ofce; II they do, they do exactly what Is prohib-
OF the state OF OHIO vs.. Kenyon such an appoint
ment was declared absolutely void. Counsel also
cited the opinions OF Chief Justice Hunt and Judges
Townsend an Ingraham IN support OF his position,
and submitted That the fourth section OF the act
sci also cOnended that this was an attempt of the
Legislature 10 elect tribunal not known to the
as members Of the Board OF Audit was the establish.
ment OF a tribunal whose officers were not elected
by the people, and from whose decision there was
no appeal In the case OF the People vs.. Pinkney
it was decided that whenever there is an attempt
colorado or not, by the Legislature to appoint
anybody to exercise an Office known at the time
of the constitution OF 1916, or the duties
OF the Office then known however much
the name may be changed, that attempt will be
frustrated by the courts Now, here was a very
palpabe attempt-an attempt to place the func-
tons OF the Board OF Supervisors in the hands OF
three men nominated In some caucus at Albany
III these objections were OF any validity, and he be-
eved they were all unanswerable; If they had
any force, what then was the consequence Why,
that
MR.. TWEED WAS NOT AN OFFICER DE JuRE
or de rdctO That he not an officer de jit,e no.
body Will deny; but was lie an officer de rdctO?
lie took the ground that, being an officer de rocto
ar he was SUCH, he not liable upon the indct-
ment, which charged him with being an officer
where there was really no office to ILL., In the case
OF the People vs. WHITE IN 24th Wendell, IL was de-
cidcd that person cannot be i'm Office with "A color