New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1889-10-10
KEMMLER REMANDED.
DIRECTIONS TO THE ELECTRICAL EXECU.
TION LAW NOT SUSTAINED.
DECISION BY JUDGE DAY AT BUFFALO IN THE
PROCEEDINGS TO OBTAIN THE PRISONERS
RELEASE ON A WRIT OF HABEAs
CORPUS.


CORPUS
auburn, N. Y, Oct 9-County Judge Day
nied MS decision in the Kcmmler case this morn
ihs' Inc case was habeas corpus proceeding
oeSt the constitutionality OF the Electrical Exc
'uU0n Law lie decides that the law is con-
'u'uCionai' ana remands the prisoner to the
o"''ouy VI warden DIrston, at Auburn Prison, for
execution. Judge Day concludes by saving:
There seems TO be an element OF crueltv inscna-
rable from any taking of human life as punishment
for crime, but it is clearly not against this ,ba, IN.
constitutional prohibition is directed. II was
held by the Supreme Court Of the United States
IN the wilkinson case that sentence 10 death nv
shooting was not illegal in Utah The common
law rule in this State, when applied, was adopted
and long before, and even after until the act of
1885 TOOK effect, and no question was made as tn
the legality of death by hanging. That statute
put changed the means whereby TO produce death
And can 1t be said that in this case IL has been
plainly and beyond doubt established that cleo
rlcly as death-dealing agent is likely to prove
less quick and sure in operation than the rope
believe not. Legislative act is not to be de-
clared void upon mere conflict of interpretation
between the legislative and Judicial power.
Before proceeding to ennul by judicial sentence
what has been enacted by the law-makng power
1t should clearly appear that the act cannot be
supported by any reasonable intent or allowable
presumption The judicial power, in declaring the
act OF the Legislature void, does not proceed upon
the theory that it has superiority over the Legis-
lature, or that laws, to be valid, must conform 70
Its notions of wisdom and propriety The duty
and responsibility is upon the courts to decide.
when the question is presented TO them, whether
an act the constitutionality whereof is assailed
fhp NH ,l,.
law, and if found so to do. it is no law and is TO
be declared. 1t is manifest that the duty
should be proceeded upon with great caution
and hesitation, since one coordinate branch
Of the Government-the judicial-s thus asked
to determine that another branch-the legisla.
tive-has erred. That this should be fearessly
done in proper case is undoubtedly true but
IL is as true that the power is not TO be exercised
unless the necessity for doing is clearly appar.
ent All the authorities are, / believe, to the
effect that in doubtful case statute assailed
as unconstitutional should not be judicially de-
clared so 10 be. Three rules appear First that
to every legislative act there attaches presumption
oil cOnsututlonanty, and the burden of showing
1t to be unconstitutional is upon him who assails
IT; second that no such act should be annullcd
by the judiciary as opposed TO the fundamental
law IN a doubtful case, and, third, that when a
constitutional question arises before a single
magistrate, he should only declare the law
Invalid when his duty to dc
is entirely clear, and that in
case of grave import he is justified
II not required TO leave the matter to the de-
Liberation and determination of the appellate
tribunals. Applying then, these principles TO
the present case, the questions are whether the
prisoner has overcome the presumption that the
statute of 1888, in regard to the intlction Of the
death penalty, provides no cruel and unusual and
| therefore unconstitutional punishment: or proved
that force Of electricity sufficient TO kill any
human subject with CELEBRITY and certainty, when
nlipH hp tod In
judgment these questions must be answered neg
atively The most that can Justly be said in his
ii iay'r is that there is diversity of opinion on
should e can be % Judicial nowGSss DSs'ea that hshe fhe
punishment therein provided is cruel and un-
usual There is no such knowledge, and his con-
tention fails. In any the gravity of the mat
ter demands that it be left to the courts for their
de termination
/" If these views are correct, the claims so ear
nestly and eoquently pressed by the learned coun-
sci for the prisoner TO the effect that If IL Is doubt
full that electricity will kill at once and there
fore panessly in every instance in which il may
be administered TO take the life OF cuprit as con-
dign punishment, his client should be discharged,
as there is and can be, no valid law in this State
whereby even convicted murderer can be de-
livered over to an experiment, and that to hold
otherwise is a rule against at least the spirit OF
the Constitution cannot be here allowed.
" There is still another factor in the case TO
which allusion has been made but which has no
little weight in determining my course OF action,
and IL is that the Court ofk)yer and Jermlncr, in
passing sentence upon the defendant by implica-
ton, at least, must be deemed to have pronounced
in favor Of the consttutionaty of the disputed
law Judicial comfy and decent respect for
that tribunal would seem TO require that | follow
that ruling. Having thus sufficiently indicated
the grounds Of my decision, consideration Of the
other questions suggested on the argument is uln-
necessary. An order will be made remandng the
prisoner"
Counsel for Kcmmler says that the case win be
carried through the regular stages to the Court
Of Appeals.