Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1913-09-20

beats ranged in time rom the 18th cen
| fury in England to 1909. when. during
the imDeachment of John II ShiveIY,
auditor of the state 70 Washington. Ii
nf the ~ members Of the Senate We're
| challenged and all Were 0yerwhclm-
| irEly cverrul2d."
In the Shively case. Judge Parker
pointed out, it had been held that a
scnator's vote belonged IT, his constit-
uontG and not to himself
The only precedent in supper; of the
challenges, he said, MAS one in which a
senator had been excluded because he
WAS a brother of the accused He did
not specifically mention the ease re-
fertcd to.
With all the preponderance of prec-
tdent overwhelmingly against the right
Of challenge clearly in mind. he con
t:nH"G, the trainers 9f eur constitution
did not see fiji to include IN II a p1a-
vision which would permit members of
the highest cour. of the STATE to be
challenged merely because they had
served on committees or commissions
primarily responsible for the impeach-
meHt.
ton that Senator Wagner Should not
sit Judge Parker insisted that the
Senator WAS not in reality the lieu
tenant governor, but merely acting a.
president pro TEN Of the Senate He
added, however, that if Senator Wae-
ner were to become lieutenant COVER
nor he would not be directly affected
by this proceeding because il was the
sovernorship and not the lieutenant
sovernorsEip that was at stake.
judge Parker emphasized the fact
chat If the constitution permitted chal-
lenges it might be possible SO to re-
duce the membership of the court that
La majority could not be reassembIed
IN which event it would be impossible
To pass upon the guilt or innocence of
the accused.
Judge Herrick declared that If a
majority were endangered recourse
would be had to the common law rule
which in effect provides that even if
Ia judge is under arrest and no othe!,
judge is available. the judge in Gus
tody. is permitted to sit in judgement
on case. In this manner, he claim
ed, ample provision had been made to
give every person accused Of crime
his day in court.
He inquired why these four sena-
tors had not followed the presidents
cited by the Assembly managers coun-
sci and asked to be excuse d
There being no request for lengthy
elaboration. Judge Cullen stated that
he would not take advantage of the
provision of the rules which gave him
power to decide the question first and
permitted his decision to stand unless;
an appeal to the entire court were
sustained. He said. however, he felt
Iit his duty 10 give his fellow members
of the court his opinion in the matter
He then declared his belief that tiie
challenges could not be maintained
At the conclusion Of his statenseI1t
senator Herriek of New York. slia II
brother of. Judge D. Cady HerricE
moved that the Court consider the
question in executive session. When
put to vote his own was the only
one in the Affirmative
The roll call on the question: shall
the challenges be entertained >" was
then begun.
Senator Frawley, Transporter. San
ner and Wagner were excused from
voting at their own request. With these
exceptions the vote against entertain
ing the challenges Was unanimous
Judge cullen then directed CLERK
MeCabe to read the articles of inn.
peacument.
What answer does the respondent
interpose to the articles of impeac Ia
ment filed by the Assembly," querieC
Judge Cullen when Clerk MeCabe hat
finished
Judge Herrick thereupon STATED
that, pursuant to the notice. yester-
day. that objection would be made tt
the Fahdity Of The Impeachment, Loui,
Marshall Of the Governors counsel. h,
said, would argue that point.
Mi Marshall first asked that the en-
tire proceedings lac dismissed on th.
ground that the court is without iu
risdic.ion and the charges are null. Vol,
and of no effect
The principal attack was directed
| against the eonstitutionality of the ac
ton of tho Assembly in adopting til,
| Impeachment articles during AN eX
| tfaordinarY session when the subjeC
matter had not been recommended b,
| by the Governor
| Senator Wagner. chairman of tn,
committee on rules submitted the re-
| port of the committee. which wa
adonted with objection The rules pro
vide FOR two sessions daily except Sat
urday. The hours may be changed from
| time To tine by the court for lack o
| witnesse or other cause.
| The conduct OF the trial is to be gov
| erned by the rules prevailing in tn
| supreme court OF the state, and the fl
| nal judgment of the court shall be Ger
| tilted ny the president Of the court an,
| clerk of the court.
| u. cady HerriCk. leading counsel 70
| Governor SulZer, argued in behalf o
| the challenges he announced yeste-
| day. he wouG make to the sitting al
| members of the court of Acting Lieu
tenant Governor Wagner and Senator
| Frawley, Transporter and Sannei
Iudgn Heriic> stated that the objection
| to Senator Wagner was based upol
| the fact that AS acting lieutenant gov