The Montgomery advertiser., 1905-07-18
ELIHU ROOT TO WEAVER Advisesky yort Prosecute
 IsJfficials. REsslT OF A CONFERENCE District Attorney Has Refused
 to Budge. The Philadelphia Chief Executive May Take the Initiative and Make
 1t Warm for Several
 Prominent Citizens.


 special counsel for Mayor Weaver. It is probable that the Mayor will within a few days institute criminal prosecu- ton against certain persons who are prominent in municipal affairs.
 MT. Root advises that the Mayor in the face of refusal of District Attorney Bell to take the initiative in bringing further prosecutions should exercise his right to go before a magistrate ana carry the prosecutions as far as the law will permit him.
 This opinion was sent to Mayor Weaver today and was the result or a conference held In New York last Fri day Those who participated in the conference besides Mir. Root and the Mayor were former United States At- torney General Wayne McVeagh. who is at present chairman of the Commit tee of Nine of this city; former Judge Gordon, private counsel for Mayor Weaver, and Julian T. Davis and Joseph Auerbach, counsel for the Committee of Seventy.
 The question at the conference was whether the Mayor should take the initiative in further prosecutions, the district attorney having refused to do so. s Mayor Weaver and Judge Cor don last week requested that the dis trict attorney, in drawing up indfct- ments against Councilman Frank H. Caven and John W. Hill. former chief of the filtration department. should bring the charge of conspiracy with certain other persons to defraud the city.
 Caven Under Bail.
 Councilman Caven Is under ball for violating his councilmanic oath in be- ing interested in city contracts. and former Chief Hill Is under bond to answer charges of forgery and falsifi- cation of records in connection with contracts for the construction of the cityfs filtration plants.
 At the hearing given both men be- fore magistrates the name of the con tracing firm of ID. J. McNichols & Co. which Is constructing the greatest part Of the filtration system, was frequently brought in by witnesses. The mem- bers of this firm are former Insurance Commissioner I. W. Durham, the leader of the local Republican organization; State Senator J. P. McNichol and his brother. Daniel J. McNichol.
 The district attorney. In refusing to add the charge of conspiracy to the i'm dictment drawn up against Caven and Hill and to initiate criminal proceed ings against certain other persons said that such charges. based on the evidence taken at the Caven and Hill hearings, could not under the law be made. He suggested that the Mayor take the initiative. Mayor Weaver and Judge Gordon insisted that it was the district attorneys duty to begin prose- cutions. they declaring that the evil dence in his hands warranted him in so doing. Mr. Bell persisted in his refusal and the New York conference followed.
 In the midst of the controversy be- tween Attorney Bell and the Mayors counsel MT. Bell today sustained a broken leg through the falling of an elevator in an office building. Whether the accident will delay the trials of Caven and Hill Is not known.
 MT. Roots letter reads as follows:
 Mir. Roots Letter.
 New York. July 15 1905.
 My Dear MT. Weaver-I have dis cussed very fully with MT McVeagh. Judge Gordon. MT. Davies and MT. Aur- bach the facts bearing upon the deter imitation of your present duty in re- gard to the frauds in the city of Phila- delphia. clearly indicated by the t.sti- mony already taken and by the further evidence which your counsel nave col lected. .- s..:.* ...* ......: :+
 Tt appears by the correspondence between Judge Gordon and District At torney Bell that you have caused the evidence of grave crimes by a humber of powerful and important persons in the city of Philadelphia to be laid be- fore the district attorney and that he has been requested to proceed with proper prosecutions for such crimes either before the grand jury of the county or before committing magis- trate and that he has practically de- clined to do either. suggesting that you should proceed before a Jaagis- trate as a private prosecutor.
 The reasons which lead the r,ose- cutirg offcerGto take this course I shall not discuss. The resulting fact alone is important for present corsid- eration. It is your duty as Mayor of the city to see that the laws are en- forced and when you find that they are being set at naught by criminal com binations 1t is your duty to bring the facts to the knowledge of the officer who Is elected by the people to prose- cute crime and 1t then becoms his duty to prosecute. not yours. think you have done what the law requires of you in this instance and that means that if the prosecutions so clearly indicated by the evidence in your possession and in the possession of the prosecuting of ficer fail for want of prompt action ho one can say that 1t is through any fall ure of duty on your part.
 Permitted to Prosecute.
 uO not lullhs IOWtNeT, mat tnlS settles the question as to your futt re action. Although the law does not require you to prosecute. 1t permits you to do so, up to the point where the return of the committing magistrate goes into the hands of the district at torney.
 "I think that in default of the action which ought to be taken by the public prosecutor, the great interests which you have undertaken to subserve de- mand that you should nevertheless ex- ercise your right to go before a magis- trate and carry these prosecutions as far as the law permits you to do.
 Tn doing this you should. think, invite the aid and cooperation of the district attorney. giving him every possible opportunity to take part in the prosec stions and to perform the duty for which he was elected. Crimes committed by men who have political power are often sheltered behind ofti- cial indifference and inactivity and then some one has to do more than their duty to secure justice and you