New-York tribune., 1918-07-12
Appellate Court
Rules Fusionists
Cannot Be ried
Childs, Sulzer, Healy and
Newcomb Score a
Victory
Get Restraining Writ
Special Term of Supreme
Bench Prohibited From Pro-
ceeding Further With Cases

The Appellate Division yesterday
granted the application of William
Hamlin Childs, executive chairman of
the Fusion campaign committee last
TALL, for writ of prohibition restrain
ing the extraordinary term of the Su-
preme Court, presided over by Justice
Colt, from taking any further action
on indictments found against Mr..
Childs and others. The writ also ap-
plies to the cases Of former Governor
William Sulzer, former Senator Josiah
I. Newc omb and former Coroner Tim
othy llcsly, also under indictment with
MT Chi,ds for alleged Irregularities
IN the expenditure of Fusion funds in
the last municipal campaign.
While these cases were the only ones
before the Appellate Division, the rul-
ing of that tribunal will have much
broader effect, for the opinion Of the
court Is that the extraordinary term
OF the Supreme Court convened by
Governor Whitman did not meet the
statutory requirements regarding the
publication that such term had been
called. If that contention is upheld
then the indictments in the so-called
Rockaway land fraud will fall, as will
the conviction OIL the tifty-four cleo
tlon inspectors who were tried before
Justice Gotf and sentenced by him
for fraud at the primary election last
TAIL III their cases it is possible that
those now serving terms of imprison-
mcnt will be freed il yesterdays de-
oision holds
Might Affect Many Cases
In fact, all other cases that came be-
fore Justice Golf in the illegally con-
vened court might be affected, while
certain Y all contemplation of trying
any indictments before that court must
be abandoned.
The flaw on which the Appellate Di-
vision granted the writ of prohibition
was discovered by John 3. Stanchfield.
chief counsel for Mr. Childs and his
codefendants. 1t was characterized by
the District Attorney as a mere tech
ncality. The order of Governor Whit
man ccnvcning the extraordinary term
required that the calling of the court
be advertised in two newspapers one
day IN two successive weeks. One of
the newspapers designated complied
with this order, while the other, "The
Morning Telegraph" published the no.
tlce two days in succession.
The Appellate Division called atten-
tion to similar objections made by
.Il1Itra TChr NrIn of
Sessions, when an extraordinary term
was called 10 try the claim of James
A. De ehanty to the place on the bench
occupied by Judge Mcintyre.
III the manner of giving the notice."
said the court, "is of no Importance
and the Governors order can be dis
regarded so long as the order itself
conforms TO the statute, we admit that
the defective publication in the instant
case is of no Importance and the OBJ
lection merely technical But it also
follows that objection in the Mcintyre
case was the 'merest technicality.' Nor
does the feet that the Mcintyre case
was called to the attention of the court
before any proceedings were had, and
that in the case at bar it was not called
to our attention until numerous other
trials were had at the extraordinary
term, distinguish the cases. If the
court was not legal court and we
were right in prohibiting it from exer-
clsing It's judicial functions, it would
not have become a legai court merely
because it had assumed to act.
AT the beginning OF this action the
authority oil the court to proceed fur
tier is challenged. A writ OF prohibi
tion deals with the future and not with
the past. The court can be halted in
the course OF term as we'll as at the
beginning. This court can say, you
shall not continue to exercise a juris-
dlctlon that you do not possess as
we'll as You shall not commence to ex-
ercise IT."
Justice Clarke Dissents
Presiding Justice Clarke wrote an
opinion dissenting from the majority
opinion, in which Justice Shearn con-
CURED. 1t said "As an adequate rem
edy is provided by law and the ex
traordinary trial term had charge both
of the person of the reiator and to
ment, and its determ nation thereon
can be tested by appeal, the writ of
prohibition will not lie"
After reading the decision carefully
District Attorney Swami gave out the
following statements:
"It is a pyrrhic victory. One more
such victory and they are lost. The
opinion says that the grand jury sum
moned by 1.-THE extraordinary term
was a de facto grand jury ard the in
dictments found by it are valid and
that none Of the formal court proceed
ings heretofore had can be success
fully challenged.
I'VE have several remedies. We can
ask Governor Whitman to redcsignate
Justice Goff to sit in the trial of the
defendant The cases can be trans
ferred to General Sessions for trial.
The Appellate Division can be asked to
designate Justice Goff 10 preside at the
trial"
Mr. Swami said that in his opinion
the indictments were valid and that it
Will not be necessary to present the
same evidence before another grand
jury. He said that if the Appellate
Division should designate .. justice of
the Supreme Court TO hold criminal
term Of the court the Governor would
not have to be asked to create another
extraordinary term Of the Supreme
Court.