The Bennington evening banner. (Bennington, Vt.) 19??-1961, 1913-09-23
ONLY ONE VOTE TO
DISMISS SULzER
EACHMENT
HiQh Court Insists that He Be
Tried as Charged
GOVERNOR ) SECOND DEFEAT
Presiding Judge Decides Assembly
Was Acting Within Its
Rights

Albany. Sept. 2S.-Goy. William Sui
ger must go to trial. This was decid-
ed by the high court OF impeachment
last night when by vote of 81 to /,
its members overrued the motion OF
the governors counsel to dismuss the
proceedings on the ground that he
was uncOnstltutiOnally impeached by
the Assembly because that body was
In extra session when the impeach-
meut was brought. Senator Gotttried
IA. Wende of Buffalo, democrat, an ar
dem supporter OF the governor, cast
the solitary negative -Four senator's
and Judge Gray were absent
The governors defeat was the sec
ond that has marked the battle Wag-
ed by his attorneys to annihilate, as
far as possible, the Impeachment pro
ceedngs Last week the court thwart
ed the efforts OF his counsel to pre-
vent four senators from sitting as
members Their remaining ammuni-
ton consists of arguments to prove
that certain OF the offenses charged
against the governor were not i'm
peachable. These arguments Will be
heard today. The vote last night was
taken in secret session after an after
noon of impassioned oratory by the
opposing attorneys. The vote WAS lat
er announced in a brief public session
and the record of the proceedings was
Immediately made public at the sug-
gestion of the presiding judge.
The record showed that tentative
rollcall on the motion was immediate
ly taken and that the presiding Judge
delivered a long opinion on the points
at issue when his name was called.
Judge Cullen's opinion in substance
was that the provision of the consti-
tuition which limited the acts of the
Legislature in extra session to such
subjects as were recommended to II
by the governor should be given a
reasonable construction. Ii upheld
the contention of the prosecution mat
the provision referred TO the Legisla-
ture as a whole and not to the AS
sembly as an independent body so
construed" said Judge Cullen, these
subjects all relate 10 what the Legis-
lature as a body can do and not to
the power vested in one branch OF
the Legislature"
Senator Wende explained his vote
in a brief argument in which he held
that when the Assembly adjourned
sine die some weeks before reconven-
ing to bring the impeachment articles,
'they foreclosed their right to act up
on any question of Impeachment when
called together in extraordinary scs-
sion
Senators Foley and Thompson also
explained their votes, concurTing,
however, in he opinion of the presid-
ing Judge. This in part was as fol
lows. 1T is urged by counsel for the
managers that the Assembly has the
inherent right to meet at any time
and present articles of Impeachment.
From that doctrine | dissent in toto.
It is true that 1t is the Assembly that
has the right given it by the constitu
ton to impoach, but the Assembly
does not consist of The individual
members of its body except when
they are duly assembled.
THE constitution gives the Assem-
bly, power 10 impeach II was in reg
ular session. ! use regular session in
the sense that il was regularly con-
yened in response to a call by the gov
emor. Now having the power of inn
parchment il could exercise that at
any time unless we find another provi
sion in the constitution which re
stricts it or forbids il. That provision
is claimed to be found in the fourth
section of the fourth article Of the
constitution. in which it is said AT
extraordinary sessions no subject
shall be acted upon except such as
the governor may recommend for con
sideration. Does that apply to this
power OF impeachment"
After giving his Interpretation of
the meaning of the trainers of the
constitution intended to convey, Judge
Cullen concluded: Il think that
when il was said that the governor
shall submit business for considera-
ticn TO the Legislature il was the gov
Crnur's business that was meant not
that OF the Legislature. not OF the Sen
ate. But &c gave the Assembly the
right TO impeach. therefore am OF
the opinion that this right does nos
come within the limitations Of the
constitution. We must give a reason
able construction OF b. and SO constru-
ed these subjects an relate to what
the Legislature as a body can do and
not 20 the power vested IN one branch
of the legislature. ] vote no"
The main point az issue between
the attorneys seemed TO be whether
the act OF the Assembly I'm bringing
the impeachment was judicial func-
ton rather than a legislative. The
defense maintained thai an impeach-
ment was equivalent TO an indict-
ment By a grand jury and that the
Assembly performed the function Of
an accuser. not of a judge. Counsel
for the prosecution maintained that