Grand Forks herald. [volume] (Grand Forks, N.D.) 1916-1955, 1921-07-25
N.s9T9ssT 49, N3ffesA@ssAf T8lea5< N9gREfMstBa8Af lf4HStN
rs THE GOVERNOR IMMUNE?

A curious and interesting question has Arisen
in Illinois in connection with the indictment of Gov
conspiracy to defraud the state. The charge is that
Governor Small and some others entered into and
carried out a conspiracy to defraud the state Of
some two million dollars by their illegal manipula-
ton of state funds. They are alleged to have depos-
tied state funds in a practically defunct bank which
was revived for the purpose, and to have reloaned
these funds to private enterprises, receiving from
the borrowers six to eight per cent interest, paying
to the state the two per cent prescribed as the min
|imum, and retaining the difference.
1t is held by the states legal department that
while the law prescribes two per cent as the mimi
mum to be received by the state for the use of its
funds, if a higher rate is received that interest, what
ever it is, belongs to the state. If the funds are de-
posted in good faith and in the ordinary course Of
business in established banks, those banks are at
liberty, of course, to make such use Of it as they find
convenient, and to retain the earnings, paving to the
state the two per cent or such higher rate as they
may have been contracted for when the repositories
were named.
The charge is that in this case the transactions
were not in good faith; that the governor used his
|officialfposition to direct the placing of state money;
that he and his friends revived an old and practical.
ly defunct bank in order that through it they might
handle the states money for their own benefit; and
that by this process they enriched themselves to the
amount of some two million dollars. The governor
land his friends, of course, maintain their innocence,
and assert that their transactions were perfectly le-
gal.
The really interesting question, however, is
whether or not, under the constitution of Illinois,
the governor of that state can be arrested on a crimi-
nal charge. 1t is the old question over again of the
relative authority, under our form of government,
of the three branches into which it is divided. Gov
ernor Small, by his counsel, maintains that by virtue"
of his position he is immune from arrest, his author
ity being equal to that of the courts. He sees the
breaking down of our entire system of government
if the judicial branch is conceded the right to place
the head of the executive department in custody.
Reliance is placed on the theory often stated in
connection with the British system that "the king
car, do no wrong" he being, theoretically, the fount
from which all legislation springs. That theory is
"a familiar one, but in spite of it a king of England
was arrested, tried, convicted and beheaded.
There are intimations that if the court orders
the arrest of Governor Small he will resist arrest and
as commander in chief of the military forces Of the
state, will summon troops to his aid. Should both
parties choose to proceed to extremes, the answer
would be the summoning of a sheriff's posse to over
whelm the militia, and a State Of civil war would re-
suit.
In a milder form the same question of relative
jurisdiction arose in North Dakota not long since
when a court order, regularly issued, was ignored
by the governor of the state. The judge in that case
allowed the order to stand, but did not undertake to
enforce it.