The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1898-02-16

""cn JuuEc Upton Prepared ae
the Courts Reauest-Kiag Tens
Why Special Prosecutor. should
Continue With the Grand Jury.
Special Prosecutors s. D. King and
Thomas NJ Vance will continue TO In
struct the superior court grand jury In
II deliberations, and will proceed to prose-
cute Levi Smith. ex-County Commissioner
Heaton and others. as recommended by
the grand jury. An order TO this effect
was made yesterday By Judge BENSON, OF
the superior court. Prosecuting Attor-
ney McElroy tried to convince Judge BEN
son that he was in every way fitted to
do the work which the special counsel
were doing. He further insisted that the
law made him the grand jury's legal adj
wiser.
After hearing Prosecutor King. who
represented the other side of the case.
Judge Benson called on his friend Judge
William III. Upton. who was for a long
time Judge of the superior court Of wana
Waia county. for an opinion. Judge Upton
read written opinion decidedly In favor
of Prosecuting Attorney McElroy. Judge
Benson then took the case under advise
ment, and at the beginning of the fore
noon session handed down his decision. TO
the effect that the special prosecutors
were still necessary
When the morning session opened
Prosecuting Attorney McElroy was on
hand TO assert his rights as the legal adj
wiser of King county. He had prepared
a long petition setting forth his position
He first recited the action OF the grand
jury in his case. and stated that he had
consented to the employment OF special
counsel for the investigation OF his case
alone He stated that he was ready TO
so ahead with the prosecution OF tho
cases against Smith. Heaton and others.
He alleged that none OF tho conditions
under which the law authorized the en-
ployment OF special counsel existed in this
case. and that IL they continued to act
all OF the indictments brought in by tho
grand jury could be quashed when the
cases came up In court. The petition
stated that, as prosecuting attorney, he
appreciated the consideration and good
intentions of the grand jury In antici-
pating that he would be embarrassed In
proceeding against Smith ct al. having
been the person who moved 10 dismiss
the charges, lie claimed that he was
In no different position than he would
have been had Judge Jacobs denied tho
original motion Of dismissal. In the clos
ing paragraph OF the petition Attorney
McEsiroy said that IL any one wished TO
hire special counsel he would be pleased
TO confer with them and would accept
their assistance.
King Answers NcElrOy.
Prosecutor King replied to the petition. ,
He made the point that Attorney Mcfi-
roy was 40 compromised as 10 his jusig-
ment on the facts as to be incapable OF
advising the grand jury, and that tho
reserve power Of the court was sufficient
to make a ruling against the prosecuting
attorney IL Il saw tit. Attorney Eng
went on 10 say that Attorney McEsroy
could not guide the jury, as he had al
ready expressed an opinion, nor could
ne set forth what crime the facts In the
case established.
In reply to this statement, Attorney Me-
Elroy said that tho question Of compensa-
ton not his sole motive In making
his preSentment Ia the court but rather
the legal and moral obligation Ia the dis
charge Of his duty. He called on Prose-
cntor King 10 make his charges more
definite. and said that he desired to reply
10 them.
Judge Benson then stated that, as he de-
sired 70 act In a fair and impartial IMAM
ner. he had requested Judge Upton. for
merry on the supreme bench OF Waf.a
Wsila county. TO prepare a statement OF
the legal points involved as an absolutely
disinierested parry.
Upton Supports McEtroy.
Judge Upton said that the argument
ne had just listened TO ana the au;h0fi-
ties cited had confirmed hts opinion which
he had written ouf tn advance on ac-
count OF the complication and novelty cf
the case. The opinion stated that after
receiving the report ef the grand jury.
Judge Benson mad asked him, as amieus
custae. for bis op,nion IS 10 the proper
course 20 be taken by the court In view
of the report. Mr. Upton said that the
inquiry seemed to involve the conaidera-
ton Of the powers and duties Of the SUI
psrior Judge. prosecuting attorney. atsor-
ney general ard grand jury These duties,
he believed Them 20 he, he reyiewd at
sene length.
He found himself he said, unable 20
avoid the conviction that the grand Jurors
had in their zeal for the public interest
exceeded their Jurisdiction. Is his faag-
mrnf they had no right 10 pass upon fns
sCunGncss or unsoundnszs Of the prose-
cutting attorneys Judgment as 70 his duty.
or 10 recommend specific prosecutions or
the appointment Of special counsel. In
conclusion he said:
1T dces rot appear that the prosecuting
attorney Ia now under any disability that
would justify your hcx4nr IN appointing
aa officer 10 perform mis- duties or any
Dart thereof. II n not the duty Of tho
court 10 appoint rEeefas counsel. The
court II rot concerned with shat the
county commissioners may do Ia the say
Of employing special soaFs@eI. excepting
thaf~wsnc1 the inxestsga sf1u of toe con-
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