The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1906-08-11

CHERRINGTON is oVSTED
| SMOOT MACHINE DEMON
STRATES PULL.

In the judgment of lawyers, the law
of the United States has been violated
and the prerogative of Federal Judge
John A. Marshall ignored by Attorney
General w. H. Moody and District At
torney Hiram z. Booth in the appoint
ment of W. Nj. McCrea as Mr.. Booths
assistant which was announced yes
terday. In the opinion of many law
yers Mr.. Booth is in contempt Of court,
and they would not be surprised to see
Judge Marshall take summary action
when he returns from Europe in the
fall.
The Revised Statutes of the United
States say that before an assistant
United States district attorney shall be
appointed the Judge of the district
court shall certify that there is an ex-
listing necessity for such an appoint
ment. In this case Judge Marshall not
only did not SO certify, but he refused
to do so. But in its last attempt to
ride rough shOd over the courts of
Utah the SmoOt machine has had the
active cooperation of the attorney gen.
eral of the United States.
What the Law Says.
An act of congress passed May Is.
1896. says:
THAT whenever, in the opinion of the
district Judge of any district or the
chief justice of any territory and the
district attorney, evidenced by writ
ing, the public interest requires it, one
or more assistant district attorneys
may be appointed by the attorney gem
eral; but such opinion shall state 10
the attorney general the facts as dis
tinguished from conclusions, showing .
the necessity therefor. Such assistant
district attorneys shall be paid such
salary as the attorney general may
from time to time determine as to each,
which shall in no case exceed $500 per
annum."
Turned Down by Marshall.
A few weeks ago Mr.. Booth went to
Judge Marshall and asked him TO GER
tify to the necessity for an assistant
in the Office. Judge Marshall declined
TO make the certificate. He told Mr..
Booth TO prepare a showing of the
necessity in writing, and that he would
! t. Ike the matter under advisement.
Mr.. Booth did not make the showing.
Instead, he waited until Judge Mar
shall had departed for Europe, and
then. exercising the SmOot machines
pull with the Roosevelt administra-
ton. he had Mr.. McCrea appointed.
The appointment will take effect Aug.
16. and Pennel Cherrington. the pres
ent assistant, will retire Aug. 10.
Booth Doesn't Deny 1t.
Mr. Booth was located yesterday
afternoon in the office Of United States
Marshal William Spry, which has be-
of Of4 b.ao ~ g.,
the SmOOt machine. and some questions
were prOpOunded to him.
Did Judge Marshall certify that you
needed an assistant" was asked
Il decline 10 answer that question"
replied Mr.. Booth.
Did you not request him to so GER
tify, and did he not tell you to make
a showing that it was necessary and
that he would then take the matter
under advisement?" was the next ques-
ton.
Il decline to answer that question,
too said the district attorney
DO you think the appointment of
Mr.. McCrea is legal without Judge
Marshal's certificate?v
Yes, L do said Mr. Booth, and the
interview ended.
Set Up TechnicaIity.
The machine leaders claim that the
original certificate of the court. under
which Mr.. Cherrington was appointed,
is all that is necessary, and that haV-
ing certified to it once, it is not neces-
saTy for Judge Marshall to make a Ger
tificate every time a change is about
to be made in the office
If this contention is correct, however,
lawyers are wondering why Mr. Booth
went to Judge Marshall and asked him
to make a certificate; why he did not
ignore him altogether, instead of ignor-
ing him after he found that he was I'M
willing TO make the certifcation.
-Four years ago when Joseph Lipp-
man was made district attorney. he
found Mr.. Cherrington in office as as
sistant. He wished to make a change
and sought to secure certificate from
Judge Marshall that an assistant was
necessary. Judge Marshall declined to
grant it. and Mr.. Lippman was forced
to retain Mr.. Cherrington in office four
years or go without an assistant alto
gether. He kept Mr.. Cherrington.
Will Challenge McCrea's Title.
If Judge Marshall does not of his
own motion refuse to recognize Mr..
McCrea as assistant United States at
tCrney, lawyers say his title to the Of
me- VIII NC CIidIISlISeu ny SOHl6 member
of the bar. The challenge may came in
the form of a motion to quash some
indictment to which Mr. McCrea -affixes
his alleged official signature, or it NAV
come in the form of an objection in
open court to his prosecuting some de-
PENDANT on the ground that he has new
er been legally appointed to the office
The right of the department of ius-
tice TO displace Mr.. Cherrington is not
disputed by any one, the only question
being the validity of Mr.. McCrea's an
pointment under the circumstances.
KANSAS PROSECUTING