The Birmingham age-herald., 1915-01-05
Writes to Chief Executive Following Suggestion of Walker Percy, Counsel for Company.
BOYD, ULLMAN AND
 PERCY IN HEATED
 CLASH OVER MOTION
Argument At Times Grows Personal. Tilt Follows Motion to Continue Case Until February S-Percy Sug. gests Public Clamor" May Effect Judges.

Juuge Charles w. Ferguson of the city court of Birmingham. before whom the quo warranto proceedings filed by pr. Hnnkins against the Birminrh.m "aterworks company are pending. has written to the governor asking that he he relieved from sitting further on the case and that a special judge be ap- pointed to act in his stead. Judge Ferguson will read n copy of the letter to the governor at the re- sumo tion of the hearing this morning, As to whether the hearing will be dis- continued or not by him depends on the developments after the letter Is read this morning.
 As the case now stands .he pleadings to the demurrers are completed, but the answer to the petition of Dr. Hankins is yet to be filed. The hearing yesterday was marked by heated arguments bor- dering on the personal between Walker Percy of counsel for the company and Capt. Romaine Boyd and NJ. M. Ullman
 Ferguson Upholds Demurrers
 "NN6S 1T Ci Sh h5Oi ISlu lfldI Qe11urferS filed by the respondent to certain sec- tions of the petition of the relator were well taken. They had reference to the names of certain parties said to be ag- grieved by the waterworks company Capt Boyd immediately filed an amend ment to the petition inserting rames If the parties Walker Percy then asked for continuance in the case on the grounds that the petition contained new names and therefore time should De granted to look into each case.
 Judge Ferguson was willing to grant the continuance to February 8, but this was strenuously opposed by Captain Boyd and MT. Ullman, and as strenuously insisted upon by MT. Percy. The argu- ments were characterized by sharp pas sages by opposing counsel and resulted in the continuance being granted. Cap tain Boyd moved to have the cost Of the first days proceedings placed on the respondent and also that they be granted an order to inspect the books of the company.
 Arguments were again commenced when Augustus Benners, who is asso- cated with MT. Percy in the trial of tue
 
 feeling had been manifested by the at- tofneys it might be as well to pass fur t'Ier argument until this morning Judge Ferguson followed the suggestion and ad- jcurned court.
 Much Feeling Manifested
 The suggestion that Judge Ferguson fecuse himself came from Mir. Percy fol- lowing an agreement about the contin- nance in which much feeling was dis played. It was argued that there was no necessity for the continuance as the wit nesses making the charges against the company could be cross-examined and all the facts ascertained. In reply MT. Percy said 1t might be necessary to call wit. nesses to refute the charges, and that such witnesses might now be out of the city or sick. and the defendant would thus be deprived of fair and impartial trial.
 Captain Boyd insisted there was no req son for continuance, and that he was d. most on the verge of prostration because or the large number of people who daily came to his office with complaint against the company alleging that they were threatened with having the water supply cut off. He said that popular clamor and public indignation were aroused tc a high Litch
 It was at this point thai Mir. Percy made the suggestion that Judge Fergu- son recuse himself from the case. Mfr Percy stated that there had been much talk about clamor and indignation, and that it would not be amiss for the judge ss- ask the governor to appoint another judge to sit on the case. He stated there was a proceeding under the law wherein defenGants in cases where the public is wrought up can secure a change of venue.
 Refers to Crow
 In this case he said there had been much talk about the judges and the conl- mLbity. and cited the fact that Judge Crow had tried a similar case, and had been condemned at public meeting Captain Boyd asked the question whether he thought Judge Crow was competent to which MT. Percy replied that he would not nake improper remarks about the court.
 This illustrates the injustice to a judge to try a case in which there is great Topular feeling. think in Justice to your honor and the court you should recuse yourself and ask the governor to get an outside judge to try the case"
 M. M. Ullman replied and stated that a judge cannot recuse himself to avoid criticism or popular clamor. and sug- gested that writ of mandamus would apply.
 However after taking the matter un- der ooL Lsideration, Judge Ferguson de- cided to apply to the governor to be re- lieyed from further sitting on the case