New-York tribune., 1918-06-05

continuance of an injunction restraining
the Mayor and Board of Aldermen OF
Mount Vernon from enforcing the
adopted ordinance placing a ban on the
sale of the Hearst newspapers in that
city. The same decision applies to
the |New-yorker -zeitung" and
the New Yorker Herold," these two
German daiies having applied for the
same judicial relief as Hearst
temporary injunction has been in
effect, and the decision of Justice Gieg-
erich means that the hands Of the
Mount Vernon authorities are tied in
the matter Of keeping out the Hearst
and the German newspapers until the
case can be finally determined in court
by trial. This trial could not be
had before the fall term of the Su-
premc Court, even if j. Henry Esser,
Corporation Counsel of Mount Vernon,
did not appeal to the Appellate Di-
vision, as he announced yesterday he
intended to do.
Justice Giegerich holds in his de-
cision that the aldermen of Mount Yer
non were without legal power to adopt
the ordinance attacked by Hearst and
the German newspapers. After citing a
case in point Justice Giegerich says:
II am clearly Of the opinion, therefore,
that the local authorities had no power
to ordain what they attempted to or
dain in this case, and that their act is
nullity"
Justice Gegerich mentions that Cor
poration Counsel Esser, appearing for
tne Mount Vernon officials, did not at
tempt to establish the validity of the
ordinance. Mr.. Esser based his oppo~
sition to the injunction on the conten-
tion that the validity was not at issue
and on the ground that the petitioners
had not made out cause of action.
The question of public policy being
sufficient ground for the adoption and
carrying out of the ban against the
Hearst and German newspapers did
rot enter into the proceeding. Neither
did the alleged conduct of the news
papers affected, and Which brought
about the act Of exclusion. Justice
Giegerich dissented from the view of
Corporation Counsel Esser. that the
act of the Mount Vernon aldermen did
not threaten the freedom of the press
On this point the justice laid much
stress in ths following language:
1T would be an extraordinary and
deplorable situation if that freedom
of the press which we have SO jealously
guarded and which has meant so much
to us could now, of all times. when
questions of such supreme Importance
have to be considered and decided by
the people, be suppressed at the will of
the aldermen or trustees of any city
or village anywhere in the country
No publication would be safe. Our
greatest newspapers and other organs
of information and discussion would be
at the mercy of little groups of local
officials here and there, and would
be permitted to reach the people or not
according as such groups approved or
disapproved the particular news of
such publications"
Justice Giegerich says that neither
the Legislature nor the aldermen of
Mount Vernon, who derive their power
from the state law making body, would
have authority to prohibit in advance
the issuing OF newspapers of accused
persons.
"If any publications made in the past
by this plaintiff have been unlawful
the law provides punishment, but
such punishment must be for some act
done in the past and not because it is
anticipated that some act may be done
in the future"
Justice Giegerich adds that appar-
entity there has been no such action
taken in New York State as the CITY
Of Mount Vernon took against the
Hearst papers and at the same time
against the German dailies The JUS
tice refers to one case where local au-
thorities sought to exclude a paper on
the ground that it was a nuisance.
This was a Texas case, in which the
court held that the act of the local
law making body was invalid, as it was
an infringement on the constitutional
rights of the banned newspaper.