The Washington herald., 1921-07-27
Slips Away from Capital
For Conference in
Chicago.
COURT RULES HE is
NOT ABOVE LAW
Officials Pause to Give
Governor Chance to
Furnish Bond.


Gov. Len Small has slipped quietly
out of Springfield.
He left late today for Chicago.
where. IL was reported, he will com
fer with his political ally, Mayor
william Hale Thompson.
At the hour of his departure, the
governor had not been arrested, de-
spite a ruling OF Circuit Judge L.
S. Smith earlier in the day that he
is subject to arrest and prosecution
on warrants issued following HE
indictment by the Sagamon County
grand jury for alleged embezzle-
ment Of s5Oo,OOo interest on public
funds while he was State treasurer.
No Effort Of Arrest.
No real effort was made in
Springfield to place the governor
in custody. the disposition being to
permit him TO give himself up.
A move was made in the direction
Of serving a warrant on the governor
in the afternoon. however. but IL
was allowed to die. States Attor-
ney Mortimer telephoned George D.
Sutton, private secretary 10 the
chief executive, suggesting a confer
ence on the situation. sutton re-
FLIED that Gov. Small was the only
one who had authority to speak on
the subject. Mortimer made no ef-
fort to discuss the matter further
amicably.
The warrant at a late hour today
had not been turned over TO Sheriff
Henry Mester. the state first desir-
ing to give Gov. Small every op-
portunity to submit peacefully 90
the courts order.
sheriff silent on Pians
II was expected that the warrant
will be turned over TO the sheriff
within tWenty-four hours unles.
some communication is received
from the governor. Mester inoi-
Gated that he would attempt 70
serve the warrant in the usual way
but would not state what course lac
would pursue If nc met with re-
sistance.
Il shall not attempt service to-
dav," the sheriff said. because we
want to be fair with the governor
and give him ample opportunity &c
surrender himself.
Former Representative james
Graham. one Of Smalrs lawyers
was asked what the next move
would be.
"Irs up to the sheriff" he said
.T don't know what he will do"
Given Reasonable Time.
The sheriff says he will give the
governor a reasonable time, Ora
ham was told.
He had better make IL very
reasonable" Graham replied.
Judge Smith held in hh rulins
that
i. The governor is under and not
above the law.
.. He has no legal right 20 cal
the militia to prevent his arrest.
3. The governor. as an elected Of
ficer, is not "a king who can do n"
wrong" and Illinois has no counter
part Of a king.
4. II would not he sound public
policy 20 decide that n governor Il
not as amenable to the law as any
other citizen.
s. Arrest Of the governor would
not be an. interference by the judi
cial with the executive branch OF
the government.
Governor Not Above Law.
c. The statute Of Limitation wsuld
save the governor from prosecution
at tho end Of three years. and the
governors term has more than three
years to run.
Quoting from argument OF coun-
sci for Governor Small OF the maxim
that the king can do no wrong
Judge Smith said but here m this
republic OF ours we never have ac-
cepted the theory that an elected
public oficial can do no wrong. The
governor is under and not above the
law"
The legislature, not the COVER
nor. makes the laws OF Illinois"
said Judge Smith, referring 10 the
claim that the governor could car
out the militia to prevent his ar
rest. This does not impress the
court with any great force. The
court must presume that the COVER.
nor is innocent"
Cannot Call out Militia.
The judge then discussed the gov
ernor's rights with reference 20 CALI
ing the militia. He declared that
the State troops cannot be used &c
prevent the governors arrest. II is
not presumable that the militis
would be used for such a purpose.
Judge Smiths ruling covered
twelve typewriter pages. II dis
cussed the rights OF branches Of
Eovernment-legisla executive
and judicial-and held that the IN.
dictment and service OF warrants or
the governor are not an interfer-
ence by the court with the executive
department.
The decision was delivered 20 Io-'
seph W. Fifer. former governor ~
Illinois; George d. Gillespie. and
James M. Graham. attorneys tor
Small.