New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1878-06-14

should have considered Just consider the exten. Of
Mr. Phelps That is all matter OF imagnaii there
was nothing about its size In the papers
MORE AFFIDAvTTs AND DISCUSSION.
AZ the afternoon session. Mr. Root read an affidavit OF
Alderman William r. Roberts declaring tina the had read
the charge of Recorder Hacett the subject OF evidence
before the Grand Jury the evening Of the day on
which il was given which was before the Indictment was
found against him. and he then concluded it would be
Impossible before the Grand Jury TO quality or explain
the charges otherwise he would have endeaVOIeu %
duce testimony for that purpose He understood the
Recorders remarks TO refer TO the Board OF Aufen as
An AFFIDAVIT of John Butler tine newsboy was sub
mted which asserted that his stand was 10 nave Deeh
After some further discussion the Judge said " Inc
question: which is matter OF fact is Is this particular
Mr.. RooE"Admittng that it is hold that failure
Of IN the e5eTeSe o, 5ne WouJ IL be
fair for the courts to bring an lndicieh5 against Oo
Ngress for passing unconstitutional laws !" ,.
The Judge" There is strong distinction between
the two The Aldermen limited by ne
nuSm0I,S thew exceed it, the courts have
power TO check them The law gives no sucn OK,
ercise OF authority to courts III regard 10 congressman"
Mr.. Root-"The contamination in this case is the
authorizing stand Unless that resolution aunoI
ized the stand there was cOnsummaon There IS no
offence II the stand set up without being aut0ril
that under Section II Of Charter OF 1873 OF
the Aldermen 20 grant such permits was nov Ia 1 un
away other sections recognized similar powers ana no
where was any negation OF such powers
from time immemOria TO be found. inns lnuc1nGns
did not charge that the newspaper sInu III 1870
an encrOacnment or obstruction on Ine stIev1'
such as was condemned by satn1e, ana hea ~ hcap
peared that the stand authorized W9ua nor nave Due
such an obstruction Furthermore the resolution was
legislative act which the defendants could not De
called i'm question This proposition was true whether
the stand was obstruction within the meaning OF the
the Common Council The Aldermen were bound TO
determine whether the stand was conyenlence or an
OD,ruction and presidents could De Iounu IOf pun
ishmg them for an erroneous determination Ihelf I'M
munity was inherent in the nature Of their functions,
n
government. Even if not legislative officers they were
called to exercise their discretion ana there was no
precedent 10 hold to account Tor the exercise
OF discretion conferred him unless he acted cor
Tuptly, which was not charged
ARGUMENT FOR THE PROSECUTION.
The Dstrict-Auorney said that the obstruction made
by his stoop would act bar TO his speaking on the
question Just theD The questions Of law would be con-
sidered by Mr.. Rollins.
Assistant Disrict-Attorney Rollins then made the mr.
gument for the prosecution. doesn't seem 10 ue ne
Other counsel would have believe. IL L. notorious
fact that streets or NewYork are DISTRACTED by
oI f these obsrnctiops and 10 what extsntl OF two
arguments, which form large proportion
Of the points of the defence, one is Please
maan, it is only little one" ana the other. You're
auotberU submit that the size Of the stand or the
Size OF the lad that kept it have nothing to do with IT,
the size OF the front stoops u the DSrcAttOIney
and others There is question OF fact between eoun-
sci. The Board of Aldermen on certain day passed
resolution that John Butler should Keep newspaper
stand No mention made Of its slzei II might eN-
tend the heavens above or TO the deep below me
matters before tins court do not include defence OF e
men who are indicted. No statement in that indictment
can denied. All these matters OF the size OF the OD
me Tn3eeG'Tbe onIy offence with VIII ch the Alder
men are charged was the passage OF That resolution
Mr. Rollins" The ndiCtmeni charges mat the AIutl-
men did exactly what the 17th Section OF the charter
orbids them doing. The charter declares lhal tnfy
have not the right TO place any lIr Inc
The Aldermen knew That newsstand at any place on
that corner would be q nuisance"
Ifft he
which may he construed as fair tand II ~ IS
an improper one isn't the removal OF Al lar meIhou Oh
Alter further argument from Mr.. Rollins Dlstrlc-A-
torncy Phelps sand large proportion Of inns aiaCnS
sion proceeds from mi6appTeheuslOu OF What Is proper
in a motion to quash. The real ground TO Dase
such motion ON Is TO SHOW my Y Tue limit ~
bring IN papers 20 show that although the Indictment Is
GOOD the defence is good. No assault has been made
mon rms Indictment All the facts here given in aida-
Wits show that the Aldermen nave EOOd uelclcc OF
thai the newsstand was not an encrOachment THESE
matters can only be determined on the trial OF the Issue
The indictments distinctly STATE lhdJ the AIucImcu
anfhertzed NEWSSTAND AT corner whore they knew 1t
vould be an encumbraDce Counsel say that the
ou@ht 10 have done into tie faces. II every one OF
these de lepdans had gone before the Grand jury they
would have established every essential iact ia these l
dIctments They would have established nolhing when
would initiate against the indictment, but would have
supported nearly every asserto - 49,, a., ., 49,,
Judge Barrett-Iat Is concession ihal lnG Only iha
teral grounds Of the Indictment ne IN the resolution II
is to be presumed that me Grhu jury nan Tsduece
il whether the Grand Jury have not investigated those
under
Mr. Pbeps-I am willing 10 stand on TINS pIopesloni
II Tie evidence sufficient il WAS their night TO ma the
bill. irrespective of any charge.
The Judge-NOu take the broad ground tnat notbhg
sad by tile Court the Grand jury SUFFICIENT 10 QuaHh
fe Indictment Yet the language used 10y tho Recorder
To a petit Jury would authorize reversal MurmuIs vi
satisfaction among the Aldermen's cOunseLl
After further discussion Of the subject by the Dstrct-
Attorney Mr. Field sald: The Dstrlct-AttOrncy has
not replied point that one indictment quashes the
Tie Judge-That has not been brought forward
Mr.. Fied-Iet II is IN the ail!dayits.
Mr. Phtlps-In point Of fact, these two indictments
were found at precisely the same time. -
MIR. Fleld-IAat Is an utter physical 1mpOssDilliY.
orc must be signed before he other DO you mean
they given 10 the foreman at the same tmet il 50
Mr. Phelps-TEoy were both placed in the foreman's
hands at the same instant.
Mr. Rollins to the Judge)-GOu do not say that one
indictment would quash the other
The Judge--NOt at all.
Mr. Fields IL possible that there can be any question
about this 7
ply unless parties tine Bame the parties here are
NOT the same Another thing Is that the second ludct
ment totally different offence, not punishable
III the same way.
Air was fun Of legal terms statute books were over
hauled ana the Law IN reference 70 ind cimcnls made on
similar subjects read Finally Mr. Root, who had been
examining the original afidayits, said These IN
dlctmcnts caption; therefore include TINS IN
the points Tor the motion TO quash."
Tie Judge-That point was OVerTued some time ago.
AS 10 was D. ~, Mr.. Fields argument was delayed
until this morning. In order to permit Mr.. Fields
attendance Bryauts funeral the Judge placed the
hour for hearing the argument at II O'Clock.
XLYh CONGRESS-IId SESSION.