The morning journal-courier., 1908-12-28

 cd. After conference between the judges, Judge Bennett announced that they had decided they sit as some sort of a tribunal After technical al iteration in the caption Of the protest had been made. Attorney Henry W.. Jessop of New York. senior counsel for MT Fox, entered a general demurrer, which was accepted, though contrary to the usual practice In Connecticut courts.
 Mir. Jcssop Speaks.
 Mr Jessop said q wish to acknowl- edge my appreciation of the cour- tesy of your honors and the gentlemen of the other side, in permitting me to address the court The question which is thus presented on the threshold of this discharge by your honors, of the inqusltorlal functions laid upon you by virtue of the provisions of this act. we arc prepared 10 discuss without prejudice to our contention, which WIG shall shortly elaborate that your hon- ors are not sitting as a court of jus tlco That the act itself expressly ex cludes from its scheme, the establish meut of any election court, and that you are sitting more as the English cases describe lt, as an iuaulsltorIal tribunal, and that you are sitting as T subordinate tribunal created by the general assembly for the purpose of ! this enquiry In discharge of its con stitutional power, vested in it by arti- cle 1 and section 2 of the constitution of this state, l propose to try to pro- eeed your honors, that with regard te ths particular enquiry, in aid of the general assembly, for the purpose of determining questions concerning the election of the governor, that a scheme | has been erected here which confcrs upon you as a non-judlclal body, non- | judicial functions If I can persuade your honors of that, ] think l relieve this proceeding from the charge of un- constltutlouality
 In the first place, this act is clearly scvcrable act First, in regard to the | general structure and scheme of this election enquiry There arc three strands braided together in Che word- l ing of this act They are easily to he l followed, as you follow down the braid. They are al no tlmo, lnextricably Inter- twined, SO that they must stand or fail together, This enquiry Is very differ ent in tho case of a candidate for the chief executive office in tho state, who, by tho constitution of the state, is bound to take care that tho laws be faithfully executed, Your honors are here to certify to certain facts, and accompany your findings of fact, if you agree, or your separate findings of fact ! if you disagree with a transfer of the evidence. If this was minor or suh- ordinate office, you would have to or not declare it void 1t Is a familiar l principle in interpreting the unconsti- nationality of the act that fl a part of the act is constl- tutional and another part is unconstl- tutional, the act may bc sustained as to that part which is constitutional provided it is not noxtrioably inter- twined with the unconAtitutional pro- visions Now then, if the penalties In | this act are unconstitutional they may be topped off, without affecting the l functions which your honors are asked to discharge And therefore our con. l tention is, that with regard to the en- | qury before your honors as an in- 1 ousltorial commission or tribunal, that | you are in the same position With any of the other officers of the state re- l quired by this act to perform certain functions The supreme court the chief judge of the court of errors, q 1 judge of the superior court any state referee, the states attorney or the prosecuting attorney of q particular court, are given certain functions and powers or duties with regard to this matter There is a discrimination in regard to the enquiry into the question whether or not crime has been com mitted, There is no personal right or | this respondent here, invaded by what your honors may do, You are not to throw any conclusion of law in the finding, with the transcript of evidence that you are required to file with the secretary of state. Now what the le- gal effect of your finding is, lt seems to me, is for another body to deter mine.
 Judgo Robinson Queries
 The following question was here asked by Judge Robinson.
 What Is the effect, MT Jessop of that finding, upon Mir LiIleys rights. if this tribunal whatever it Is, whether it is court or whether if is a special tlLAuunl what effort dnna that lindins