Omaha daily bee., 1921-07-23
Law toTake
Course In
Small Case
Illinois Governor Immune
From Custody Until Tuesday
will Not Voluntarily
Submit to Arrest.

Chicago Tribune-Omaha Bee Leased Wire
Springfield, ILL.,, July 22.-Gover.
nor Small is immune from arrest or
the embezzlement and conspiracy in
dictments returned against him, al
least until next Tuesday morning.
Judge E. S. Smith today decided to
hold the matter in statu quo until
THAT time.
Meantime. the governor is at lib
erty to 60 into court and surrender,
as did Lieutenant Governor Sterling
and Verne Curtis, if he wishes. On
advice of his counsel the governor
will not submit to arrest.
That the law will be allowed to
take its usual course, which means
that Sheriff Mester will be expected
to serve warrants on Governor Small
if he does not surrender in reason
able time, was apparent from intima-
tons given by Judge Smith, follow
ing three hours of argument.
That he would be traitor to the
people and would violate his oath
of office were he to do anything else,
was the contention of the governors
counsel. Broad hints were given
that the governor would call upon
the militia of the state to protect him
should the sheriff attempt to take
him in custody.
Former Governor Joseph w. Fifer,
former Congressman James M. Gra-
ham and George B. Gillespie argued
for the governors position that he
| is above the law. The arguments of
Mr.. Graham and Mr.. Gillespie went
more than two hours without an in
terruption. States Attorney Morti-
mer asked no questions of opposing
counsel.
No Action Before Tuesday. :.
At 2 p. m., after talking with
States Attorney Mortimer, Judge
Smith said:
ITO newspaper men I will say that
there will be no action by this court
in which they will be interested until
next Tuesday morning"
Does that mean that the question
of serving warrants on Governor
Small is to be in statu quo until
that timer" the judge was asked.
st does" was the reply.
Before the adjournment of the
court for luncheon, Judge Smith
thanked the lawyers and dropped
the remarks on which partisans.
clearly understood that he viii rule
that Governor Small must submit
to arrest because immunity extends
only to a governors official acts.
His alleged embezzlement as state
treasurer was not an official act
of the governor as state executive
that would call for distinction of
the rights of the executive from
the judicial department.
Mr.. Graham offered one of the
most, unusual arguments ever heard
in an Illinois court. He went back
to the days of Nero, to the early
history of Athens and of France.
He called in kings and monarchs
and Roman emperors.
He based his argument on the
application of the three forms of
government, legislative, executive
and judicial, and declared:
why, if there is a government in
hell, those three powers must pre-
vail there, too"
impeachment Only Punishment.
Impeachment, he said, is the only
way to punish governor if he does
wrong.
Mr.. Graham went into a discus
sion of the possibility of a clash
between the sheriff's force and the
militia. He spoke of the constitu-
ton making the governor command
er-in-chief of the state military. In
the event of the court issuing an
order of arrest and a posse COM
mitatus were called by the sheriff
to enforce it, he foresaw anarchy
and chaos in Illinois, should the
governor resist with the help of the
militia.
Governor Small is being guarded
day and night to prevent surprise
arrest by Sheriff Mester or any of
his deputies.
Accompanied by Leslie Small, his
son, and Capt. John English, his
son-in-law, and three body guards,
the governor arrived at his Office in
the state house at $50 o'clock. At
II o'clock the governor saw his first
outside visitor.
After remaining in the governors
reception room for two hours. re-
porter was approached by George
Sutton, the governors private secre-
tary.
THE governor objects to any
newspaper men being in the office"
he said. "Will you please go"
Subpoena servers were not in evil
dence when the governor, emerging
from his Office by the private en-
trance and accompanied by the
same FIVE companions, left for the
executive mansion.