New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1882-12-30
MUTUAL UNIONS CHARTER.
4 DECISION By JUDGE ARMOUR.
WITHDRAWAL OF THE PERMISSION GRANTED TO
TIE ATTORNEY-GENEBAL~

u DIClSIDN 81 JD DIE AhNOlA'
WITHDRAWAL OF THE PERMISSION GRANTED TO
TIE ATrORNEY-GENERAL~
In the Superior Court, Ga mbers, yesterday,
judge Armour handed down DECISION on the motion ~
yacate permission recently granted ny Judge IruaA
to the ,torney General to bring an action 20 have the
charter Of the Mutual Union Telegraph Company dc
carcd forfeited. He holds tnaJ tne permission should
be Withdrawn, with leave to the Attorney -Generai to
renew his application for such permission Judge Ar
nouX's Opiniouis as follows:
"Tne questions involved in this motion are not only
important and novel they have been discussed wiJh
UNUSUAL ability ny the several counsel wnO have been
heard IN tIe course Of tue argument
'fIt-Tne most important III its relation to the office
OF the Attorney General that Of his right 10 accept
private under the provisions Of section 1885
OF the Ciyl Code 1t Is gratifying to observe that as
public attention been called to this argument this
section has been universally condemned Turkish
kad dspenscs Justice to the highest bidder THIS Is
worse tor II allows bidding only on one side II an
Attorney General should refrain rom buns ing action
because he accepted moneys from the proposed defend
ant II would clear OF bribery out here he can
accept moneys reator and thus be influenced
by pecuuary considerations 10 his Official action This in
the forum OF ethics would he wholly mucfenbe II must
be equally dated IN courC OF justice. More than
this II Is contrary the Constitution The creaiy Of
| State Controller, Treasurer ana Attorney General shall
be chosen at a general election, ana snail mold their
|
namcd snail stated times during MS continuance IN
ONCE his services compen 7liion1 which
email not increased Or diminished during the term for
which he shall have been elected nor shall De receive TO
bis Use any fees or perIustcs OF oce or other com
peusadon' Court, art sec. H. The restriction re-
spcctlng Increasing diminishing during the term of
office Is mi,cd to The salary the prohibition against
fees perausites or other cOmpcu saon absolute. Ii
GEAR that tins provision OF the code - unconstitutional
Sccond-Thc question ID the right OF the Attorney
General 10 employ counsel A. common law an attor-
ncy has the right to employ counsel although he cannot
bind the principal without his assent TO the compensa-
| ton to be paid The distinction between employment
and compensation of attorneys in cases OF trbst well
| defined An executor may retain attorney, but he
cannot bind tho estate to any compensation he may
choose to make DstrictAttOrneys often have the as
s.tance OF counsel in crni al prosecutions for whosC
services the tate pays nothing wnatcyer But the at
torpey could moi delegate to such counsel his position
a. attorney without his clients concurrence and this Is
recognize by the rules Of this court requiring the con
sent Of tho party order OF substtu ion Tho Attor
ncy-Genera stands any other attorney. He may EN-
poy counsel and statutes giving MIN such authority
are SIMPLY a recognition Of his common-law powers lie
cannot 90 more IN this regard than any other attorney,
and this understand t. be the cec, OF ue decision IN
the matter Of the Attorn, General W. the North Amer
can Lie Insurance Company (Gl Howl That different
! practice has arisen IN the office OF the Attor-
ey.Gcncra may be inferred from the follow
! ing language of that distinguished oliccr
| i, n public letter which this contention has
called form L took the piecauOn Of having an agree
rnent made in writing allowing myself and tue Attorney
General if deemed it necessary, TO step in for tnat
rurpose tine proceedings in tho case in order
that the public interest might not he ieOparlHed oy
| any private personal interest whatever rms pre-
caution wholly unnecessary Tor he ha tle IlShI o
do what he claimed by the agreement, and he mad not
thr power to deprive himself or his successor OI tHdt
frd-The right Of the A:torneyG eneral to proceed
without notice 10 the proposed defend M aho 10 make
nm Application Court liked by the code.
Ills proceeding Is In certain sense analogous 10 tue
inv 40 summon the accused before them, but IL Is Dot
| esssral to the validity OF tine indictment. The sec
| mons OF permIsslNe, oDlEatOly. Inc
Court may direct noucc To be gwen but II can wen oe
undrrsOJd that emergencies may arse "here the pur
pose of he would be frustrated II The uelengant
had notice After the suit l. commenced the defendant
@ yoks the acti n OF the Court aud may inquire into
inc regularity tae preliminary proceedings Just a.
defendant In criminal case may pursll"u INC regularly
OF te organization 81 Grand Jury and tue proceedings
FoarthNThe app1cation TO the Court for leave to
act Oh verbal statement Petitions are constantly pre-
secuted ,uu for leave TO sue ana are invariably
in wiling Whatever referred to in the petition be-
comes tue basis Of the petition anu therefore should be
likewise writing and should be ted with tne petition
The Therefore Ia tAe petOh 10 papers "hcn
| are not filed Is an rresuldriiy
| FitLl-Ihe order IN question having been
made ex parte the only method IN which II conf be
brought up for review was adopted by the deiennaAi
In legal sense call upon one branch or Term Oh I'M.
Court sit in review Of ITS equal Ii Is matter OF
|
this case would De sufficient 10 say tnat pro hde rice
tne Court now sitting is the Court tnat granted Cue
order the motion having been suOmttcI to tue Judge
who made tue order and he navI requested II TO be
heard by the Judge now holding the Special Term
not however necessary to put on mat ground Is
the proper mode OF bringing before the Court
whatever might initiate against tue ordor Itself, or
mign have induced the Court have reiraned from
msdng tho order in the first instance. Ihls motion
must the same footing with any other order OF
| like character.
o. Slrfb-lfthe positions above taken correct 1t fol
| lows "A proper sequence that whenever the moving
party show goOu therefor The order grant
ing leave must be vacated and The question thoh pre-
itself, Has such cause been shOWn III tulf
mtuOn Inc learned counsel insist that II has oOth aS
matter OF practice and the merits The petition pre-
seuted purpOred TO been signed by the Attorney
General as follows: Leslie w. Russell aud was ycTi
ned by Mr.. Nash. IL now appears that the Attorney
General IN fact never did sigu the petition The act
| signing such petition Is not mlnlsterla
act, and cannot bo delegated. The Court has
| right TO know by the signature OF th'
Attorney neral himself tnat he Is Tue petitioner, ahl
hold him personally responsible for the act Inc
Of the Court upon the application Tor leave NUS
| necessarily often depend upon the reliance mat th
Court places In the sOemn conclusion OF the Attorney
General, manifested his own Application therefor
And the Attorney General, by the purity OF III
the ability that he possesses as II w
case with the present Incumbent O thal Once oothn
tho universal confidence Of the Court such petllio
must itself the favorable confederation Oh al
Judge To wnom II Ia presented. No attOrney-ln Iao
judicial petltiouercan delegate 10 any other pesO
the rgt to sign lis nano to any suoA OetIion l~'