New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1913-06-08
COURT SAYS MITCHELL
HAS NO RIGHT TO lob
Justice Chester AffirmS Car
mody's Ruling That Appoint
ment Was Illegal.
DAY OF SULzER REVERSES
Attorney General Repudiates
Governors Choice of Smith
as Highway Graft
Prosecutor.
Nv telegraph 70 The Tribune ]

BY Telegraph n The Tribune
Albany. June 7.-Several things oc-
Cured here to-day 10 cause worry TO Gov
ernor Sulzer. The first was when Justice
Alden Chester. OF the Supreme Court, de-
clded that his appointment Of John
Mitchell as State Commissioner Of Labor
was Illegal.
II had been intended to get this veXed
question 10 the Court OF Appeals as soon
as possible by having Justice Chester and
the Appellate Division give merely pro
forma decisions leaving the decisions on
the law 10 the Court OF Appeals. The
Albany justice. however was so con
WINGED I'm his belief that Governor Sulzer
had no right To appoint Mitchell that he
not only decided the case on the law but
rendered long opinion on IT,
Trouble over the Mitchell appointment
started when Attorney General Carmody
announced in an opinion that it was in
violation of statute, and later advised
the State Controller not to pay Mitchell
for his services. ExJustice -. Cady Her
rick. who had been engaged by Governor
Sulzer 10 defend the appointment, asked
for writ Of mandamus commanding the
State Controller TO issue warrant on
the State Treasurer for the salary of the
Labor Commissioner. Justice Chester to-
day denied the application. and In his
opinion Analysing the facts in the case
substantially affirmed the ruling Of At
torney General Carmody.
The term OF John Williams as state
Labor Commissioner expired December
81. but he continued as a hold-oyer until
May &c. which was after the legislative
session adjourned. Meantime Mtchels
name had twice been sent 10 the Senate
by the Governor and was twice rejected
Then. on May IS. Williams resigned. and
Governor Sulzer appointed Mitchell.
Justice Chester holds that the vacancy
for the purposes OF appointment occurred
the day the session began. and that the
subsequent resignation of Williams made
no new vacancy He holds that the law
provides that where n vacancy occurs
so that II can be filed during the SEES
sion, the Governor. in not taking advan-
tage OF the opportunity. cannot fiji II az
terward. The Governor has called a spe-
cial session Of the Appellate Division so
that the Mitchell case can get TO the
Court OF Appeals without any delay.
The effect of the decision is also 10 up
hold the contention OF the Attorney Cen
eral that the Governor Is without author
fly to appoint successors to Frank NJ
Stevens, Of WATERFOWL, chairman of the
It's y. Douglas. of Albany. "a member OF
that commission. and Dr. Eugene r.
Porter, former State Commissioner OF
Health.
Attorney General Carmody stuck an
other thorn In the side of the Governor
to-day when he announced that he had
not appointed Peter =. Smith. of Brook
Ign, as deputy Attorney General to
prosecute cases of Highway Department
graft following the investigation of John
A. Hennessey, as Commissioner. The an
nouncement Of the appointment of Smith
had been made in the executive chamber
Mr.. Carmody said that the evidence OF
Mr.. Hennessey had not been submitted
TO him, and that. while he was always
ready TO assist in investigating dishon-
esty or graft he must first know that the
facts warranted it,
The prison commission was another
source OF annoyance TO Governor Sulzer.
Early In his administration the Governor
complained that the law providing that
state departments must buy prison made
furniture where possible was being vio-
lated thrC ugh the prison commission
granting waivers TO allow the heads OF
these departments TO buy their supplies
I'm the open market. The Governor him
self has now run up against that same
law. BY purchasing supplies for the ex-
ecutive chamber In the open market. The
required certificate from the prison COM
mission was not obtained. and now the
commission Is holding up the bills.
Perhaps II was significant OF the Gov
ernor's state OF mind that he did not go
to Poughkeepsle. as planned. To hold a
direct nominations rally The Governor
returned TO Albany shortly before noon
to-day, having made the trip by motor
from Catskill. where last night he carried
his direct primary campaign into Greene
County. lie will remain in Albany over
Sunday.
In an interview regarding Supreme
Court Justice AIden Nhestsr's deeision