New-York tribune., 1902-03-25
JAIL ORDER FOR DIXIE.
OPTION TO TURN OVER BOOKS
WILL BE GIVEN TO HIH
FACTO AND DE JURE ARE ONE
THE COLONEL GETTING
SICK OF THE JOB

/ being committed 70 the Raymond Street jail
| by Sheriff Guden if the order is not obeyed.
! Justice Gaynor to sign this order yesterday.
/ but when it was presented to him In the after
noon the wording was not satisfactory to him,
and he also desired that Colonel Dikes counsel
be informed of the contemplated action.
Colonel Dixie was as uncommunicative yester-
/ day he Sunday. and declared that
/ he could not say what he would do until copy
! of Justice GaynOr's order had been served on
! him. There seems TO be every reason to be-
! lieve. however. that stay will be obtained and
! an appeal taken to the Appellate Division OF the
| Supreme Court. Friends Of Colonel Dixie
| that he is getting thoroughly sick of the worry
! over the case and would throw up the sponge
and get out if he thought he could DO so with
| out offending Governor Odell Mr. Dixie Is
| d wealthy man. and docs not care for the
/ salary attached the office. On the other
! hand. he Is told by some of his friends that
in case the final decision of the courts is against
! him he may he tied up for the rest of his HE
with suits for damages. This idea was strength
ened by the opinion in a memorandum handed
down by Justice Gaynor, in which he declared
/ that the Sheriff de facto and the Sheriff de
| iure must he the same
Following the course mapped out in his oplh-
| ion on Saturday Justice Gaynor handed down a
decision yesterday in the habeas corpus proceed
! ings against Mr. Dixie and Mr.. Guden turning
! the prisoners to the CUSTODY Oh MI 'FHu''l-
! Mr. Gaynor also repeated his opinion that Mr.,
! Dixie was q usurper In the office Of Sheriff. AS
! result of the decision C;uden had two prison
! ers on his hands with no prison In which TO
! keep them After puzzlinR over the situation
! for some time he finally allowed David Cold
! farb 10 go in the custody of his counsel The
bond of Jacob W, Falk was renewed
Justice Gaynor in the memorandum handed
| down with the decision. states that Mr. Dixie
] .t,11T TH1l L fr1t a
! custody and is liable FOR damages in so doing,
! The memorandum Is, IN part, follows:
! There can be only one Sheriff In law and in fact
at the tlme; and II has already been decided
for the books and papers Of the office that ne Is
The contention Of counse, for the RESPONDENT
that he al least sheriff de tacto is without
TWO sheriTs OF the county acting at the same time
one de jure and the other ac facto. one ot them
truson into public office docs not suffice to maHc
ottcer de factq has no 2ppif%ti%on ION to 2 e@s' & ES
the present ~ aLPttes IHI or ne m ,l y' 'gh,
upon The faith Of an appcarance Of authority ana
not apply where the official action is challenged at
bc misicd bv H. and where uo rights have. as yet.
accrued upon its faith eithsT OF ra6us or Rfv4te
room possession Of the office OF sheriff The polit-
rooms. The narrow meaning Of room as ofice
words public office
The order which Jerry Weinberg as counsel
for Guden. prepared for the signature Of JUS
tice Gaynor read in part. follows:
II is hereby ordered that Norman 5, Dixie he com
nired to the JAN FOR the County OF Kings until he
belonging the Office OF the Sheriff aforesaid.
ddn $mS4 a 5c OF OF h m COUNTY y s of Ens oT TO nn he's
he otherwise discharged.
Justice Gaynor suggested that the order be
changed to read that, If Mr. Dixie does not de
liver the papers and books, "the satd Charles
dered to commit the said Norman s Dixie to the
county jail"
Justice Gaynor also told Mr. Weinberg that
he must inform at once Judge G. u. h. Has
hrouck, counsel for Mr.. Dixie, that applica-
tion would be made for the signing Of the order.
This will allow Judge HashrouCk opportunity To-
procure a stay. Justice Gaynor wishes to avoid
any further violence in the case. and desires
that its final judicial settlement be expedited In
/ every way possible
Colonel Dixie stayed away from the sherT's
office almost all day but was near at hand in
the chambers of the Appellate Division. the
second floor 1t said that he absented him
self from the Office in order to avoid signing any
papers that might still further complicate his
position No passes were issued for the Jail
until late in the afternoon. it was thought
that MIR. Guden might attempt to recapture il
by getting a number of his friends inside the
breastworks through the medium Of passes.
Later Mr Dixie assured that attempt
would be made by the Guden people
strategy or force 1t is understood that Mr..
Weinberg has made promise to that effect to
Justice GaynOr.
That the talk OF his friends about damage
suits for false Imprisonment, etc. had worried
! Colonel Dixie considerably was evident 1t Is a
question whether stay in the order OF Justice
GaynOr concerning the delivery Of the books
and papers would have much weight in mtigat-
Ing any damage that might be asked for in
Mr Dike's commission S Sheriff were declared
! nul nd vol tp
the opinion OF Justice Gaynor. who says in his
memorandum. The contention that Dixie is
Sheriff de faCtO is without foundation. The
! mere Intrusion into public office does not make
the intruder an officer de faCto.' His remarks
! also concerning Mr.. Dike'S action in the arrest
| of Goldfarb and Falk-"One or the other of
them Dixie Guden must he a trespasser
against him and liable to him In damages there
for"-are considered significant in this connec-
tion.
The possibilities Of future damage suits as
explained to Mr.. Dixie by his friends seemed
quite appalling, and 1t is a fact that Mr.. Dixie
has been considering seriously withdra wing
from the office of Sheriff and turning over to
Guden the responsibility OF acting as Sheriff and
the possibility Of answering for damages In
case IL is declared that he removed legally
In the course Of the day Colonel Dixie had
several conversations over the long distance tel
ephone with Governor OdelL A friend is author
ity for the statement that Colonel Dixie told
the Governor that he would gladly retire from
the fight if the Governor willing.
TO RUSH THE APPEAL
Albany March 24-It was said at the Executive
Chamber to-day that the appeal from the decision
of Justice Gaynor I'm the Sheriff Cuden case would
be rushed through the courts with ali speed II is