The San Francisco call., 1913-09-23
LAST TIER
FIGHT BY
SULzER
Governor Makes a Titanic
Struggle to Bar Out Old
EmbeZzIement Charges

ALBANY. \. y. Sept 22-Five OF
the big legal guns engaged on the
two sides OF the contest over the inn
peaehment Of Governor william Sui
zer today fought throughout the en-
tire session. of the court over the
question:
Shall the first. second and sixth
articles of impeachment, which relate
to acts of the governor prior to his
Inauguration, be stricken from the list
Of charges?"
While there is a possibility that the
vote on this point may come by 3
o'clock it is probable that final de-
cision will go over until tomorrow
morning.
AS D. Cady Herrick began the at
tack for the governor he gave notice
that the governors lawyers. who have
appeared before only for, the special
purpose Of protesting against the
jurisdiction Of the court now ap-
peared as general counsel for the de-
tense Of the governor.
Also he gave notice that the gov
ernor would not exercise the functions
OF his Office until the court had acted.
FEW MEMBERS ABSENT
When the court had assembled in
its Impressive way chief Judge Cullen
faced a body from which were absent
only Senators Boylan. Brown. Emer-
son, Fitzgerald, Heacock. Thomas,
Thompson, Walters and Whitney
The president said:
The court having overruled the
motion of the respondent to dismiss
the Impeachment upon the ground
that the assembly had no right TO
prefer il at an extra ordinary session,
It now becomes incumbent upon the
respondent to make answer.
Minor corrections were made in
Yesterdays record and the court,
turning TO Judge Herrick. said.
Now. Judge Herrick, please
Judge Herrick arose and said:
SUIZER sVRRENDERS OFFICE
We now appear generally for the
responded. the same counsel ap-
pearing generally as had appeared
specially, and in that connection per-
nit me to say that when these articles
of impeachment were first presented
the governor was advised that mas
much as there was some doubt as to
the legality Of the Impeachment that
il was his duty not to surrender the
functions of his Office until that had
been determined. After the decision
OF Mr. Justice Hasbrouck he ceased to
perform any executive function. and it
is unnecessary for me to say that he
wiz not do so until the termination
OF his trial"
After articles one. two and six of
the articles of impeachment, objected
to BY counsel for Governor Sulzer,
had been read by Attorney Marshall,
all of which refer to alleged irreg-
ularities of the impeached executive
before he began his term as governor,
Judge Herrick launched his brief.
He prefaced his argument with the
announcement that Judge Vann. asso-
ciated with him. was suffering from
ptomaine poisoning and was unable
TO be present today.
SULZER SENDS MESSAGE
Governor sulzer sent a message to
Judge Herrick through his secretary,
Chester c. Platt, today The com
nunication was closely written on n
small scrap Of paper. Secretary Platt
left the senate chamber immediately
after he had delivered the note.
Judge Herrick, attacking the valid
ity Of the articles of impeachment,
said IN part:
This is a government of laws. and
not Of men.
The assembly. in preferring ar
ticles Of impeachment, and the court
for the trial of inpeachments so pre-
ferred. are both governed by the laws
of the state, and the law Of the
state is that public officials can only
be impeached for willful and cor
rupt misconduct in office
while we are concerned for Mr..
Selzer. we have a graver and higher
duty TO perform than merely to pre-
vent his being compelled to give an
explanation Of the charges contained
fnsethese several articles. We are
concerned for the proper administra-
tion Of the law. We are concerned
for the governor of the state and all
other executive officers who are sub
1ect TO Impeachment for the prece-
dent now to be set by you will not
only control future proceedings in
this state but Will be vastly influ-
entail in controlling and directing
similar proceedings in every state of
the union.
CHARGES SET PRECEDENT
NO cases have been brought to our
attention where public official has
been impeached for acts committed by
him while a private citizen.
NO case of impeachment in this
country has been found where a pub
lic official has been impeaehed for Of
&enses committed prior TO his assump-
tion Of Office. All are cases of miscon-
duct in Office
The primary purpose of an i'm
peachment is to remove from office an
unfaithful public official.
The acts alleged in the first, second
and sixth articles of impeachment
here presented are none of them acts
Of an official, and all are acts cogniz-
able by the ordinary tribunals, where
the accused may be tried before a
Jury, where no one sits in Judgment
upon him who has been engaged in
nroe9 firing evidence against him, who
has pre5udged his case and declared
: him guilty without a hearing, or who
s8s aetuated by political feeling or par
tisan animosity, and when. II the ac-
6used Is found guilty Of the felony
charged against him. his removal from
public office follows"