New-York tribune., 1907-07-30
TO COURT OF APPEALS.
SENATE ELECTION CASE.
Justice Fits Hears 4rgument-A
Decision TODAY.

Albany. July 29-The Court of Appeals will
have 10 decide whether not there shall be an
election Of State Senators this fall on the basis
OF the apportionment of Senate districts
enacted by the Legislature at the extraordinary
session last week. The first argument OF the
question was had this afternoon before Supreme
Court Justice Fits. He will render his decision
tomorrow Wednesday. and In any event an
appeal Will be taken at once to the Appellate
Division In the Third Department which will
probably be convened by Governor Hughes in
extraordinary session for the purpose at an
early day. It's decision will be passed on at
once to the Court OF Appeals. in order to settle
tho matter In time for the general election in
November
Two aspects Of the subject before Justice
Fits; first. the main question whether the de-
cision of the Court OF Appeals In overthrowIng
the apportionmeut act OF 1906. under which the
members OF the present Senate were elected,
did or did not leave open an election of Senators
before the end OF their normal two years term
second, If election OF Senators this fall is to
bc forbidden, shall the procedure be. as con-
tended In an application by Senator owen Cas-
sdy, Of Schuyler County by peremptory Qan-
damus ordering the Secretary Of State to send
out the election notices to the county clerks
without including call for election Of Sen
ators: or. asked by Senator O. G.. Foelker. OF
Kings, by writ Of prohibition forbidding him
10 order an election or Senator's!
Ex-JudEe Martin. of the Court of Appeals:
Senator Hinman. OF Blnghamton. and Senator
Cassidy appeared for the Cassidy application:
ex-Assemblyman Alexander Thain, of Brooklyn.
and Senator Foeker himself appeared for the
latter's application. while Deputy Attorney Cen
eral George =. Decker and eX-State Senator
Mackey. of Rochester represented the Attorney
General In behalf of John s. Whalen. Secretary
of State. who also present.
Justice Fits held at the beginning Of tho
hearing that the Senate. which appointed a com
mittec to safeguard its interests in the matter
had standing in court and that the Cassidy
application argued matter involving
only his personal interests
Senator Cassidy. supported by Senator Hin
man. argued that there were no vacancies In the
Senate: that court other competent body
had certified the existence of any vacancy. and
that the Governor had issued proclamation
calling for election of Senators. The func
tions of the Secretary of State he insisted. were
purely ministerial and executive. and had no
power to discover vacancy This writ of
mandamus' he declared. lis for the purpose of
directing the Secretary of State 10 mind his
own business
Deputy Attorney General Decker contended
that II was the duty OF the Secretary of State
to make the list of vacancies to be filled at the
general election that il within his func-
tions to order the election OF constitutional Off
GERS to replace the members of the de facto
Senate the earliest moment consistent with
the public interests. The present Senate
listed, he declared. in defiance of the constttu-
tion, and should be got rid of at the earliest
possible moment. The whole spirit of the con-
stitution and of the law regarding de facto OFF,
GERS he contended. required that the opportu-
nifty of the intervening election should be seized
to restore constitutional government and estab-
lish constitutional Legislature
THE law has respect for de facto officers"
said he 1T makes of them only from pure
necessity and only until they can be superseded
by officers legally elected"
Justice Fits reserved his decision, announcing
that he could attempt III the short time at his
disposal to give the matter only cursory con-
sderation and would arrive at a decision some
time tO-mOrrOW.