Harrisburg telegraph. [volume] (Harrisburg, Pa.) 1879-1948, 1914-05-13
JUDGMENT ASKED
AGAINST POWELL
Judge McCarell Intimates That No
Further Delays Will Be
Tolerated in Case
THINGS ARE MOVING RAPIDLY
Attorney General Secures Friday
For Argument; Powell
Appeals to Governor
THINGS ARE MOVING RAPIDLY

|
Moves for judgment against Auditor
General Powell and State Treasurer
Young IN the mandamus proceeding
| to compel them to honor q requisition
of the State Highway Commissioner
for money from the accumulated auto
mobile license funds SO that roads
can be improved were made before
Judge McCarrell in the Dauphin Coun-
| ty Court this afternoon, and the brief
proceedings were full of interest. They
| Will be argued Friday morning.
| Last night Auditor General Powell
went into court with a motion to quash
the mandamus proceeding brought
against him alone "a few days ago, and
! also asked for fifteen days in which
| to file an answer. Attorney General
Bell, for whom Deputy Attorney Gen
Gral HarSest appeared, met this move
to-day by moving for judgment in the
| Joint case and for argument on Fri
day on the motion to quash.
c. p. Rogers, Jr., chief of the bu-
reau of expenditures in the Auditor
Generals Department, appeared for
Powell, and in the course of the argu-
Auditor General, and incidentally
| asked what would be the attitude OF
the court on the time to file an an
swer in case the motion to quash was
denied.
Twenty hours" replied the
Judge, who said further that Powell
had been explicitly directed TO file an
answer, that he had come into court
and had been personally directed to
file an answer and that he had not
done so. The Judge also remarked that
Powell had been directed to file the
answer by the President Judge and had
not complied, and said that Mr.. Rog-
ers could judge from those statements
the attitude of the court Throughout
Judge McCarrell plainly intimated
that no tritiing with the order of the
court would be permitted.
The Auditor General to-day met the
Attorney Generals refusal to assign
deputy to defend him by an appeal to
the Governor. In his letter Mr.. Powell
said:
Il have the honor herewith to hand
you copy of letter forwarded by me on
May 3, 1914, to John c. Bell, Attorney
General, together with copy of his re-
ply. | am 10th to believe that as chiet
executive officer of the Commonwealth
you would approve of the action Of
this member of your executive stan.
Permit me to say IN regard to the let,
ters chat what the Attorney General
styles as purely technical and dilatory
objections are, in my own opinion and
under advice of my counsel, necessary
| to pre..snt writing into the law of the
Commonwealth a perniciq"s principle
which will come back to plae le this and
| future administrations.
The Attorney General advises that
this third petition was presented after
maturest consideration, with WHICH,
| statement, however, | am unable TO
| agree, for the reason that If a writ
| should issue in this case 1t would com
! pei me to make payment which, under
the terms of the contract approved by
YOU as to terms and by the Attorney
General as to form and legality Is not
due and payable until the Goth day of
May, 1914. | feel sure that your wide
business. experience and eminent fair
ness will cause you to direct that no
such principle be attempted to be .sus-
tained by any officer of your adminis-
tration, of which you, the chief cleo
tive officer and for the general conduct
of which you are primarily reSpon-
sible
You will. of course, remember that
prior to the bringing of either of these
actions voluntarily offered to sit
down with yourself and the Attorney
General to discuss "a proper method Of
raising the question which every rea-
convinced should at least be raised anc
passed upon by the only power author
iized to pass upon the constitutionality
of an act, to wit, the Supreme Court.
Permit me to further call your at
tention to the fact that on the 18th
day of July. 1913, nine days, subsequent
to the passage Of the act in question
$500, 10000 of the automobile money,
which act in its recital says:
Whereas, Under the provisions OF
one thousand nine hundred and nine,
entitled An act relating to motor-vc-
hicles: regulating their speed upon tho
public streets and highways of tho
commonwealth of Pennsylvania; pro-
vidng for their registration, etc, and
providing for the disposition of fines
rived from the registration OF motor
vehicles and the licensing of operators,
etc; and,
such fund the sum of four hundred
thousand dollars or over: and,
Whereas, Owing to lack of specific
authorization the said moneys have not
been available to the Highway Depart
ment in the Improvement of roads, and
therefore cannot be used for the pur-
poses for which such moneys were In
| tended; therefore, etc. (making a spe-
citc separate appropriation of the said
sum of $500, 100000.
The act heerin referred to as the
act of 1909 is the act to which the
| learned Attorney General refers as the
one upon which he gave an opinion to
Auditor General Sisson. This is the
| only opinion, on file in this office in ref :
erence. to the highway moneys, and
since the said opinion of the Attorney
General the act of the 10th of July has
! been passed by the Legislature, pre-
General, and approved by you, which,
| of course, must be taken as an express
| sion of legislative intention setting
aside the opinion of the Attorney GEN
eral.
mo mandamus was ever issued
| against Auditor General Sisson, and
| the Attorney General may fairly be
taken to have abandoned his opinion.
These. and other considerations,
make me doubtful that the learned At
torney General has given this whole
matter his maturest consideration
IL have the honor therefore, to re-
quest that you, being free from heat in
this controversy, take up for your con-
| sideration my request for the allow
ance of counsel to properly represent
the Commonwealth in this matter. I
do not believe that you will feel justi-
fled in suggesting the payment by the
! fiscal officers of a sum which during
| the year is likely to amount to 81, ,000,-
10000 without submission of the whole
matter to proper court, and certain
| am that your sense of fairness will
not compel the fiscal officers of the
| Commonwealth to so undefended or TO
pay counsel out of their private purses.
which, In my case at least, is very
| slender one"
|