New-York tribune., 1918-05-26
Court Gets Briefs
In Hearst's Action
Against Mt. Vernon,
Validity of Ordinance Ban.
ming Publications Not at
Stake, Declares Defence

The briefs in the application of "The
New York American" and "The New
York Evening Journal" for an injunc-
tion to restrain Mayor Brush and other
officials of Mount Vernon from enforc-
ing a recently enacted ordinance max
ing it punishable offence to sell the
Hearst publications in that city were
submitted yesterday to Justice Giege-
rich of the Supreme Court, who heard
oral argument on the motion earlier in
the week.
Former Justice Francis M. Scott, of
the firm of Scott, Gerard & Bowers,
filed brief in support of the applica-
tion in behalf of the Star Company,
the corporation publishing the two
banned newspapers, and ]. Henry
Esser, Corporation Counsel of Mount
Vernon, presented the opposing argu-
ments for Mayor Brush and the men,
bers of the Common Council.
Mr.. Esser contended that the validity
of the ordinance against the Hearst
newspapers was not before the court
and is not to be considered although
much could be said in its defence. On
this point the Corporation Counsel
said:
"The determination of the validity
of an ordinance is purely a question
of law and not of equity and will not
be considered by court of equity ex-
irn fol r.
proper equitable relief. The complaints
do not allege facts constituting cause
of action in equity and therefore vest
the court with no jurisdiction to con-
slider and determine the validity of
the ordinance in question upon this
motion"
Only Question Involved
The only. question involved, Mr..
Esser argued, was whether the petit
restrain the defendants from doing
something which they have not yet
done. He expressed the opinion that
the move of the Hearst newspapers was
premature, and that they should have
waited until an arrest had been made
under the ordinance, when habeas
corpus proceedings could have been
brought which would have brought up
the question of validity.
Mr.. Esser expressed surprise that the
proceedings should be brought in New
York County instead of Westchester
County, and repeated the remark of
former Justice Scott, made at the time
of the oral argument, that the petit
toner would not have "the proverbial
Chiraman's chance" in Westchester
County. Mr.. Esser said that, so far as
he was concerned, the action could be
tried anywhere. Mr.. Esser quoted nu-
merous authorities in support of his
case, and mentioned that Mr.. Scott,
when justice of the Appellate Di-
vision, took a conspicuous part in the
actions recorded, and which are now
used by the respondents
The questions at issue in this liti-
CATION" said Mr. Esser, "are among the
most important which courts will have
to decide during the progress of this
great war. The freedom of the press
is not at stake, as claimed. The protec-
tion of constitutional rights is one
that will have to be determined, as
we'll in favor of the loyal Americans
who live in Mount Vernon as in favor
of those who are in the business of
publishing newspapers. Without any
intention to resort to the spectacular,
we believe that the courts should ap-
ply no untried and unrecognized meth
ods to interfere with local bodies in
dealing with the perplexing problems
which will confront them during the
present crisis"
Can't Decide Validity of Ordinance
Mr.. Esser quoted in his brief the fol-
lowing from the opinion in the case
of Schultz against the city of Albany:
"The courts in this state have de-
MED the right to maintain an action
legged illegal ordinance by a munich
pality, until after the illegality has
first been determined in an action at
law" He said that the only relief
sought by the petitioner is an injunc-
tion against the enforcement of the
criminal law through its natural and
orderly channels, and that in this pro-
ceeding the validity of the ordinance
cannot be passed upon.
Mr. Scott, in his brief asking for a
continuance of the temporary injunc-
the Constitution of the United States
reading, "every citizen may freely
speak, write and publish his senti-
ments on all subjects"
Referring to this section, the Appel
late Division is quoted as saying:
"The liberty Of the press consists in
the right TO publish with impunity
truth, with good motives and for JUS
tifable ends, whether it respects gov
ernment, magistracy or individual"
Quotes Court of Appeals
The Court of Appeals is quoted by
Judge Scott as saying of this section
that "it does not protect the publisher
from the consequences of crime COM
mitted by the publication of reasonable
and seditious articles" Mr.. Scott con-
tinued "But that qualification of the
right to print and publish has no bear
ing upon The oresent application or
upon the attempt of the Common Coun-
Gil of Mount Vernon to infiict summary
and permanent punishment or penalty
upon this plaintiff for such offence
Of which it has had no notice and has
had no opportunity to defend itself"
Mr.. Scott contended that the Mount
Vernon ordinance condemns in ad.
vance any publication of the plaintiff
"however innocent it may be of any
manner of wrongdoing." He added