Waterbury evening Democrat., 1908-12-31
THE FOX.LILLEY CASE
Attorneys For PIajnIili Bave Placed Before Inc Judges
 Their Memorandum.

New Haven, Dec 31.--The memo randum of the attorneys of George
 l.. Fox, which was handed into the two judges of the election court to- day, in the case of the petitioner against Governor-elect Lilley, briefly
 reviews last Saturdays proceedings
 and those preceding calling special
 attention to the fact that Judge Ben
 nett, in signing the petition, was of
 the opinion that the interests of
 public justice required such proceed
 ing as the inquiry into the facts.
 It asserts that Mr Judson's excep-
 ton to the Overruling of his original
 protest committed the defendant to
 the position that the tribunal is q
 court, also that the petitioners de-
 murrer permitted by the judges
 without prejudice" allows double or
 alternate argument of the petitioner.
 Hence the memorandum is offered
 under three heads. First, if the tri-
 bunal is not a court" then it has no judicial power and cannot pass upon
 the cOnstitutonality of the act and
 must proceed until prohibited by
 proper process. Second, the act is
 constitutional on the theory that the | tribunal is not court, and, third,
 the act is constitutional on the the
 ory that the tribunal is court
 whether an inferior or special court
 or branch or term of the superior court.
 The attorneys next argue that if
 there is any doubt as to the tribunal
 being court then the only effectual
 practice and remedy was by a writ of
 prohibition. They assert that there
 is such doubt and ask 'Is it GUS tomary to institute a court of two
 members?' which in case of a disa- greement cannot render a decision or supply remedy. The attorneys next argue that with such a doubt exist ing the two judges should not lightly l assume to pass as a court on the
 validity of the act. But, since the judges have accepted plea and gen eral demurrer without prejudice.
 the attorneys say they will proceed to argue the constitutionality of the act.
 | Next arguing for such constitution allty, on the theory that the two | judges are not court, the attorneys contend that the act is constitutional as conferring non-judcial duties on a non-Judicial body In this connec- tlon the attorneys call attention to the nature of the act as general in 1 character and dealing with the high est functions of the citizens of the state with the patent intention of in suring the purity of the ballot. They emphasize the distinction between the form of judicial investigation of the lower set of officers and the higher and the non-judicial character and functions of the judges in the case of | those higher officers. thus making the proceedings purely inquisitorial. The ineligibility, the attorneys continue, cannot affect the validity of the in quiry." In the next line of argument to snow that the provisions of the act relate exclusively to the present in- quiry the attorneys lay stress upon the provision of the state constitu- tlon which says that the general as sembly shall by law prescribe the manner in which all questions con cernlng the election of a governor or lleutenant-governor shall be deter mined Such a determination, the l attorneys assert, should be expedited and supercede civil controversies af- fecting private rights.
 Taking up next the cOnstitutionali- ty Of the act, even if it creates an | actual court, the attorneys argue that the general assembly has power to | create such a tribunal and contend , that the arguments of the other side 1 lead logically to the idea of proceed lhgs Tn aid of justice and a judicial | purpose Referring to the ineligi- [ billty clause the attorneys contend that if the provision is void then the act must read as if it were wholly omitted; If thus omitted the residue ot the act, they say, must stand.
 The attorneys next assert that the authorities cited by counsel for Mr Lilley do not bear upon the coustitu- uonallty of the act and are not de- terminative. The federal cases, they say, are not applicable because of pe- culiar additional powers given the connecticut general assembly, and the Connecticut cases are not similar. the present case being in some re- spects sui geners and to be decided by ascertaining the primary and gen. eral intention of the act
 Arguing finally that the inouirv should proceed, Mir Fox's lawyers say that If the two judges are a mere subordinate tribunal with non-iudi- cal functions, proceedings can be stayed by write of prohibition. but if not so prohibited the act is man. datory and the judges should pro- ceed to discharge their duties in the case, which is one of the highest i'm pOrtance. While if the two judges are court it is against public policy for them. charged with the most sol emn duties, to destroy the value of the inquiry by assuming, in the first instance. the unconstitutionalitv of the act. The attorneys finally dis sent from the view of Mir LiIIey's lawyers that there is no appeal from the decision of the two judges and urge that the petitioner be heard and the case be tried on its merits.
 The memorandum fills twenty-four printed pages and is signed by Mat thew A. Reynolds. attorney for George l.. Fox. petitioner, and Henry Wynans Jessup, "of counsel"
 Acts of the Governor.
 Governor Rollin s. Woodruff yes