New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1907-02-17
VICTORY FOR JACKSON.
NOT HELD IN CONTEMPT.
attorney General Nay Begin Pro
cceding against Mcclellan.
GBy Telegraph 20 The Tribune.l


Albany Feb. 16-Justice Fits of the Supreme
court. handed down decisions to-day quashing
the alternative writ of prohibition forbidding
Attorney General Jackson to bring action in quo
Uqrranto 10 test Mayor McClellan's title to
office. and refusing to adjudge the Attorney
General in contempt of court for instituting a
second action for the same purpose on his own
information These two decisions form a dis
;inct victory for William Randolph Hearst and
the Attorney General and are solar plexus
blows TO Mayor Mcclellan.
Politicians here believe that there is now no
recourse left Mayor Mcclellan by which he can
stop the Attorney General from continuing the
action in QUO warranto. Mr.. Jackson is per-
fectiy free they say. TO prosecute the proceed
ings on his own Information or on the informa-
ton Of Mr. Hearst and others. It is said here
tonight that the Attorney General will press
the case with renewed energy and force a re-
count ; soon as possible.
While Justice Fitts's decisions are a distinct
victory for Jackson and Hearst, yet, had they
been the reverse OF what they are politicians
say that they would not have affected seriously
the question OF a recount of the ballots cast in
the last MayOralty contest IN New York City as
this would have been forced by legislative enact
ment in accordance with the Governors ex.
pressed views. Measures to carry out such leg
isation have already been introduced. Ac-
cording TO the view mentioned above, the de-
cisions merely hasten the recount.
Hearsts adherents here are jubant tonight,
and freely predict that the present Mayor viii
he out of Office within the year. They say that
Mr.. Mcclellan cannot postpone the counting of
ballots much longer; that the case must come
TO trial within sixty days, and the recount fol-
low Immediately afterward. and that the re-
count viii show that Mcclellan was not
eiect1d MavOr New York
In quashinG the alternative writ of prohibi
ton Justice Fits ruled that the process of the
court could not be used 10 control the actions Of
the Attorney General in the exercise Of his pre-
rogatives. and that the action of ex-Attorney
General Mayer in refusing TO bring action in
quo warranto against Mayor Mcclellan was not
binding on his successor in office. The justice
continues
The process of this court cannot be used 10
control the actions Of the Attorney General In
the exercise Of his prerogatves.
Assuming for the sake Of argument, that the
refusal Of the former Attorney General, Mayer
to permit the relation of Hearst, the COM
rnencement of action to test the title Of the
Office OF Mayor OF the city Of New York, was Ju-
dicial in its character and precluded his sue
cessor IN Office from entertaining similar ap-
plication and granting permission to institute
such an action, the same could be pleaded IN
bar, by way Of answer 10 such an action.
The writ of prohibition is of the state
wrfts authorized by the code of civil proceed
which may issue out Of the Supreme Court,
restraining judge or party from further pro-
ceeding in the action or special proceeding com
planned Of. (Code of Civil Procedure. 2O91 2.O96)
The writ does not issue as a matter OF right,
but only in the sound discretion of the court in
cases OF 81 preme necessity where the grievance
cannot be redressed by ordinary proceedings at
law sn equity or by appeal.
For these reasons the application for abso-
lutte writ of prohibition must be denied, and the
order allowing the writ OF alternative prohibi-
ton vacated and writ Quashed.
Justice Fits, in deciding on the question Of
contempt of court for the second action in quo
vvarranto on his own information against Mayor
Mcclellan, before the alternative writ of prohi-
bItion was quashed, declared that the Attorney
General had power in the first place to bring
such action, and that the alternative writ OF
prohibition did not apply to an action brought
upon his own information" and therefore, "in
bringing such action the Attorney General did
not violate the writ Of prohibition and not.
therefore IN contempt Of court
The decision is:
Power and authority TO institute this action is
conferred on the Attorney General by Section
1,e4s Of the Code of Civil Procedure:
Section 1.94S. Attorney General may maintain
action-
'aThe Attorney General may maintain an action
upon his own information upon the complaint
0. a private person in either Of the following
cases:
"First-Against person who usurps, intrudes
into, unlawfulIy holds exercises within the
state a franchise or public Office civil mill
tsry, or Office IN q domestic corporation"
In institutilg this action against the relator,
Mcclellan the Attorney General violated none
OF the provisions of the alternative writ Of pro-
hibition issued out OF this court on the fifth day
OF January, 1907. The acts there prohibited had
reference only TO action sought to be insti-
tuted upon the complaint filed by the respondent
Hearst.
The Attorney General has commenced this
action upon his information: that the
statute permits him to do and his action with
reference 10 the same cannot be controlled by
process OF this court
In both cases decided Mayor Mcclellan
bears the costs. The decision says:
The motion of the relator is therefore denied.
with SO costs.