New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1913-09-14

Justice Chester Refuses Writ to
Stop Trial, Alleging Lack
of Jurisdiction.
HERRlCK CHALLENGES LEVY
Says He Has Been Imposed On
or Told a Falsehood in State
ment About Governor Offer
ing to Resign on Condition.
fBy Telegraph 20 The Tribune. ]

fBy Telegraph 20 The Tribunel
Albany, Sept l3.-Justice Alden Chester,
OF the Supreme Court, decided to-day, IN
an opinion delivered from the bench when
he rejected an application made by attor-
news for Samuel Fowler, of Rensselaer,,
for a writ Of prohibition designed to pre-
vent the court of impeachment from hear
ing charges against Governor Sulzer;
That the Supreme Court Of New York
State is powerless 10 interfere with the
prerogatves OF the court of Impeachment
which Is to convene on Thursday.
That the impeachment court not only
has the right TO Judge the guilt or inno-
cence Of the accused Executive. but also
is vested with authority to determine the
question OF the validity Of the action of
the Assembly in adopting articles OF inn
parchment
That, once impeached Governor Suffers
executive functions were transferred auto
matically to Lieutenant Governor Glynn'
who continues TO serve as acting Gov
ernor until the impeachment court has
passed upon the charges.
Appeal o be hastenco
James Farrell and Frederick L. Draper
IT,, OF Troy, attorneys for Fowler, ana
also representing the National Progress
sive party OF Rensselaer, County. served
notice that they would take an immediate
appeal 20 the Appellate Division, Third
Department. which is holding a term Of
court at SARATOGA Springs. Justice Ches-
n Ia VIII
in expediting the appeal. which, however,
is not expected TO reach the Court oil
Appeals before the impeachment u'al
begins.
The proceedings were instituted week
ago before Justice Rudd as a taxpayer
action, and sought TO restrain the I'M
parchment court from cOnvening, on the
ground that the Assembly could not
legally adopt articles OF Impeachment at
an extraordinary session.
Court and counsel agreed at the outset
that Justice Chester could not with pro-
priety even If ne desired. attempt TO re-
view the recent decision Of Justice Has
brouck, Of the Supreme Court, at Kings
ton. who held that Governor Sulzer was
divested temporarily Of his executive
powers by the action of the Assembly
and that those powers passed to Lieu
tenant Governor Glynn.
Both Mr. Farrell and Mr.. Draper con
tended that the court of impeachment
possessed limited powers and the Supreme
Court had the power 10 pass upon the
question as TO whether or not Governor
suizer was properly and legally i'm
peached Edgar T. Bracket, former state
Senator, Of counsel for the Assembly
board Of managers. which has In charge
the Impeachment proceedings argued that
the court of impeachment was absolutely
without restraint of any kind and ques-
toned the right Of the Supreme Court 10
attempt 10 hamper its proceedings in any
way.
Impeachment Court Supreme.
In denying the brief Justice Chester up
held the contention Of Mr.. Bracket that
the court Of Impeachment is superior to
the Supreme Court
"A writ OF prohibition must be issued
only against an inferior tribunal SAID
the court The question is whether the
Supreme Court can restrain the act OF
the court Of impeachment The mere
statement Of facts seems 10 answer the
question. The court Of impeachment not
only is empowered to try the accused, but
can pass upon the validity Of the i'm
peachment. IL would be improper FOR a
Supreme Court justice to grant this writ
against the constitutional court for the
trial OF impeachment, whose judgment
cannot be reviewed by any tribunal IL
NAV be reviewed at election by the peo-
Die. but not directly. The application Is
denied as a matter OF law and not as
matter OF discretion"
Governor Sulzer was at the executive
chamber to-day. but saw no visitors.
Through his secretary. Chester G. Plat,
ne sent out word TO reporters that Rig
"trip TO New York was for the purpose cf
preparing his defence for the impeacn-
ment trial d. Cady Herrick made pub
lie the following telegram, which he sent
10 Aaron j. Levy:
II see from the Associated Press dis
patch that you state that prominent
New York lawyer. who had been close
friend of Governor SulZer for twenty
years, has come 10 you direct from Al
bany with this question: If Governor
Sulzer should resign would the impeach-
ment proceedings be dropped?' ! ask you
what the name of that prominent lawyer
is? No one is authorized 20 speak for
Governor SulZer excepting his counsel.
myself, ex-Judge Vann, Louis Marshall,
Austen G. Fox or Harvey ID. Hinmon.
Either you are stating a falsehood or you