New-York tribune., 1878-04-04
LAW OF THE SMYTH CASE.
SENATOR PoMERoYs ARGUMENT.

suprRIyrENpfNT-rHE LAW OF 1873 Utterly
ISopERATIvE-wHY 1T WAS so-THE ORDER OF
JUDGE LANDoN-MR sMYTH's FULL JUsTlFIcA-
TIOy.
Tn view of the interest still taken in the Smyth
case the argument of Senator POmerOy, showing the
legal grounds on which the Senate was compelled
to acquit the Superintendent, is here reproduced
1t is, in substance. follows:
The Governor has not cOntented himself with
simple act Of recommendation, although at the time OF
sending TO Senate the inaugurating these
proceedings the air was reekng with charges. which,
unexplained might have justified concurrence III such
recommendation. Re has gone beyond the requirements
Of the law and his recommendation Is based upon eer
specified charges and upon these Alone ana II THESE
are not proved, the whole case falls The respond
ent should be grateful to the Governor for
the course he has pursued had the Governor simply
recommended executive removal instead OF insttufng
an official trial, and the matter had come before the
for action upon their official knowledge OF the
resolutions Of the Assembly and OF the answer thereto
OF the Controller and the written statements presented
by the superintendent bimsef to the Committee on In
suraDce of the Senatc-ha 1t In fact, upon the
prna fce case up and sent TO the country when
this trial commenced be passed upon him upon such
prima facie case, without the benefit to the
respondent of witnesses and counsel apprchend
he would have found his prejudged within this
chamber as it generally been without That ease
conclusive K Mr smyth Is now acquitted, is through
the positive dsproval this trial OF any ground for
removal contained in the charges OF the Goyernof ana
upon the honest conviction OF an unfrendy tribunal
THE LAW OF 1878 IMPERATIVE.
The charges based entirely upon msdemeanors al
legged to have been committed through violations OF
Chapter 6i3, Laws of 1873. This provides that all
charges for making examinations of any insurance CON-
pany and all charges against any company by any lnsur
ance Department attorney appraiser shall first be APP
proved y superintendent. and then audited by the
the usua manner upon the state Treasury. the eonpa-
the amount to the treasury. violation OF
the law is declared 10 be misdemeanor This prports
To he an omrndment Section 2. Chapter $685. of the
laws Of 1859, and appears TO have been pre-
pared in utter Ignorance OF the fact that the only
power to examine insurance companies, or 10 provide
for the payment Of the provided In Section II
of Chapter 1913 OF the Laws Of 1853 T1s law of 1873
contains appropriation from which. pursuant to Sec
ton of Article Of the Constitution, any ex
any appropriation ever since been made by virtue
OF which the Controller could draw his warrant for or
tains no repeating clause The object OF this law was
evidently the payment from the treasury Of these ex-
penses other state expenses are paid IN the fst M
stance eventually the payment 10 the Superinend
ens of all such expenses under The law Of 1888. The
payments by the company To the superintendent under
law not sought 70 be nerered with, but an
intermediate payment 3y the s'ate treasurer Is at
tempted to be lntcricctcd. -
In the light Of these combined statutes, and not with
out read the charges presented IN the lndlcn
OF the Controller and echoed In the message OF the
Governor. The pith OF the law OF 1873, i 1t mad any
plth was requirement 81 the payment Of expenses OF
companies the first instances ny the state treasurer
To this payment the audit OF the Controller was simple
incident Now not a charge lntimatOn ~ contained
document that any breach OF the law OF 1873
has committed by the payment OF bills TO the
superintendent upon his approval, without the
intermediate payment by the state treasurer Ihe rea-
son Of this obvious No appropriation mas ever been
made from which the Treasurer could have paid Dill
THE sUPERINTENDENTs COURSE FORCED UPON HIM.
The deprecato Of Government and other securities
and especially of real estate mortgages upon which
large proportion OF the funds Of life insurance companies
was invested had become such as to create widespread
apprchen sion as the condition Of the best com
panles. Examinations became necessary. Now what
endeav0r avoid the audit OF me Con-
reconcile seemingly conflicting laws by providing for an
audit 10y the Controller of all bills TO be paid under the
law OF 1873 thus securing ubstantaliy the same
could be obtained under the laws or 1913 ana
1873 combined. the only difference being that upon the
audit Of the Controller the amount audited Dy nm
would De paid directly by The company 10 the super
ntcndcut Instead OF beng first paid by the state Treas
urcr and reimbursed by the company To the super
iutendent To tuat eud he caused 20 be prepared D
embodyIng those provisions which the GovernoraIoWed
to dis in the Executive Chamber without his signature
The l. 'gisature having then adjourned the Governor
having declined 20 sign ths proposed iaw' tle law OF
1873 having vitality, and never having had any from
m,,t . VI tie law az IS-6 having no application to
,ne,edness @ created under the law of 1853 as
that only prohibited the creation OF Indebtedness
asanst The STATE ana any The n9ivn II come ,n
panies examined and not Of the state, Mr. smyth man
aud went TO work under the law OF 1858 with vieor
commensurate with public expectation detacIng the
aid the services Of such attorneys and appraisers
as ho deemed necessary
IHE EFFECT or JUDGE LANDONs ORDER
On the Attn of september, 1877. q motion was to be
made at schenectady, in the matter OF the Universal
Life Insurance Company, to modify the injunction
TO allow certain current expenses 10 be paid Mr. smyh
claimed and believed that far as these expenses were
concerned. the mode OF payment direct by the compa
ncs established in the law ot lSJ3 was SIM IN force
Acting upOn that conviction, he insisted that the order
which had been prepared TO he presented 10
Justice Landon should be enlarged 50 as To
embrace the expenses incurred under his au
thority IN the preliminary examinations OF tie
company. Now, the proceeding IN which this order was
made was instituted under the laws OF 1893 by
tue Il ot which the superintendent clHmed
the right to have this expense pad directly by
tle companies Among the counsel present aud repre-
sonng different interests in the proceedings were Dep
uty Attorney General Paige, samuel Hand A. j. Wander
poc obert se"all and several Others all gentlemen OF
personal character Every one OF these ehen Knew
that upOn the construction OF the law OF 1873, claimed on
the part the prosecution here that order was In
press violation ot law ana rendered te Jge laDle 10
Impeachment and themselves 10 be debarred from fur
iher practice II the companies mad not the
legal capacity 20 nay these claims Without Ihe aidt OF
the Controller, before that order was made, no LEGAL
strnncc COMPANY to paw it IN that case Mr. smy6h is
lawyer, ana not present at the granting OF the
could be allowed and that the present validity OF
1853. aud the uucOnsitutlonallty or inapp
cablly OF the law or 1873.
MR.. sMYIu ENTIRELY JUSTIFIED BY THE LANDoN
ORDER.
No reasonable deny that the only possible
Ell, ct produced upon the mind OF Mr. smyth by the al
lowance this order the confirmation OF his pre-
conceived opinion TO the unconstitutiona!iy OF the
law of 1873. IL would have been no stronger In faV
upon that point upon the face OF the order such
cOnstitutiOHality had hcen expressly declared; and
had II been declared, 1t would have beeu complete
bar 20 this whole proceed,ng II such was, upon its
face its necessary legal effect, IL IL equally bar 10
this trial. Mr. Smyth correct, therefore, III
subsequently stating TO various persons ard companies
the effect the order to be, to declare the law of 1873
unconstitutional and la cOnsenting to the payment Dy
them accounts OF attorneys aud appraisers audited
by him. ,
Whether he technically right or technically
wrong is OF sort or consequence-he was substan-
TALLY right, There is such thing as conviction for