New-York tribune., 1878-03-29
further should be heard from Mr.. Fish on the
subject.

subject
The SPEECH OF An UNFRIENDLY JUDGE
Perhaps the most significant feature OF Su-
perintendent Smyth's acquittal was the fact
that the leading speech in his defence should
have been pronounced by Senator whose
personal relations with him were the reverse
of intimate, and whose political relations, IN
spite of their being members of the
same party. were the reverse Oh
friendly. Senator POmerOy frankly stated,
in the early portion of his speech, that his
acquaintance with Mr.. Smyth was slight, but
by what little they had had, no desire had
been created, on either part, to extend 1t
unnecessarily )" and in closing his speech he
said, with equal frankness, that he wished the
inquiry could properly have been made SO
broad as to include the circumstances of Mr..
Smyth's appointment to his office, so that the
public might learn whether his nomination by
Democratic Governor was, as has been
charged, "an attempted interchange of political
| equivalents" He said more than this. He
pronounced the approval of some of the bills
passed upon by the Superintendent. an
"abuse of discretion" and declared that for
this the public would mete out full justice
"tO the Superintendent, to the officers OF the
companies, and to the recipients OF the
"moneys." Without stopping to inquire
| whether Senator POmerOy was as correct III
| his criticisms as he was in his support
of the superintendent, these facts are
worth consideration as showing that MIR.
Smyth was acquitted largely by the
efforts of an unfriendy judge. Both
for personal and political reasons, it IS
evident the Senator did not look upon the
Superintendent as an ally; and there were acts
of his administration which he did not approve.
But, sitting as Judge, and considering solely
the charges presented by the Governor,
Mr.. Pomeroy rot only voted against MI.
Smyth's conviction, but led the majority
against It; and not only argued ably
and warmly for his acquitta but de-
clared that in the matters, for which he was
called to account. he was "more slnned
against than SHINING" A more conclusive
showing could hardly be made to disprove
tie noisy charges with which the air Is full,
that this verdict was given, in part by polit-
ical and personal tools of the Superintendent,
in part by political opponents purchased for
the occasion.
The legal argument In which Senator POM
eroy set forth his reasons for his vote is un-
fortunately too long for our crowded columns.
But it was not surprising that its delivery
should have been followed by decision for
the defendant Perhaps it can be briefly
summed up in saying that the law
of 1873, requiring bills for special exam
nations to be submitted to the Controller
| and paid by the State Treasurer, was never
| operative so far as insurance examinations are
concerned because no appropriation was ever
made TO carry it into effect. IL Mr.. Smyth
violated that law, he violated a law which the
Legislature had never allowed him to OBJ
serve. The bill which Mr. Smyth induced
the Legislature TO pass showed that he was
not cndcavoriug to avoid the audit OF the
Controller, because 1t provided that bills
for examination expenses should be submitted To
him, the difference being that the amount
would then he paid directly by the company
to the Superintendent, instead of going through
the circumlocution processes of the State Gov
crnment. As for Judge LandOn's order, which
permitted the payment of moneys in viola
ton, as is alleged, of the law Of 1873,
Senator Pomeroy plainly shows that Judge
Landon. in making such order, by
implication decided the law of 1873 to be
inoperative or unconstitutional Surely, If it
was operative. Judge Landon had no right to
make the order, and Mr.. Smyth was justified
in accepting his decision as against the con-
stitutionality of the act. Under these circum-
stances, if there was a violation of the law,
it was not with criminal intent, without which
there can be no mlsdemeanor.
This is the law, and these are the facts;
and the verdict of the Senate is justice.