New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1921-07-23
Lawyers Argue Governor
Is Immune and Warn of
Danger Clash Between
Sheriff and State Guard
"kingg g Can Do No
Wrong,'' Is Plea
Court lntimates Accused
Should Surrender, but
Reserves Formal Ruling
Special Dispatch to The T1ibun,

Special Dispatch to The Tribune
SPRINGFIELD, ILL.,, July 22-Gov-
ernor Len Small may call out the state
militia to guard himself against any
attempt by Sheriff Mester to arrest him
on the indictment returned Wednesday
charging him with embezzlement of in
terest on state funds and conspiracy
while he was State Treasurer.
After hearing to-day, Judge E. s.
Smith postponed formal decision on
the Governors plea of immunity from
arrest until next Tuesday. Meanwhile
no attempt to molest Small will be
made.
Governor Small, who is constantly
surrounded by a bodyguard, issued a
statement to-day in which he an
nounced that, on advice of counsel, he
would not submit to arrest, but would
adhere to his position that, as head of
the state government, he is above in
reference.
Fear Chaos il Small Surrenders
The Governors counsel argued at the
hearing that Governor Small would be
violating his oath of Office if he sub
mitted to arrest, and that chaos in the
state government would result
Judge Smith intimated that if Gov
ernor Small did not surrender within a
reasonable time, as Lieutenant Gov
ernor Sterling and Vernon Curtis, who
also were indicted, have already done,
Sheriff Mester would be expected to
serve a warrant on the chief execu-
tive.
'The contention made here, if it pre-
vails," Judge Smith said, would mean
that the Governor during his term of
office can commit whatever crime he
pleased and would be answerable to no.
body until he gets out of office. 1t
would mean that for four years the
Governor could commit any violation
of law. | am not saying that the Gov
ernor would do it, but that is the result
of the argument.
Suppose the Governor should be re-
elected. He would be exempt for eight
years."
Don't you see that by his reelection
the whole people would have passed
upon his ?" Mr.. Graham asked.
"But this is a question for the Judi
ciary to pass upon," Judge Smith re-
piled.
lntimates Small Must Surrender
The judge indicated that on Tues
day he would rule that Governor Small
must submit to arrest because i'm
munity 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 Judi
cial department.
Governor Small is being guarded
day and night to prevent a surprise
arrest by Sheriff Mester or any of his
deputies.
Former Congressman James M.
Graham, of counsel for Small, told
the court that impeachment was the
only way to punish Governor and
defied any one to point out any other
legal procedure that would reach the
chief executive of the state.
Mr.. Graham went into a discussion
Of the possibility of a clash between the
Sheriff's forces and the militia. He
spoke of the constitution making the
Governor commander in chief of the
state military. In the event of the
court issuing an order of arrest, and
posse comitatus were called by the
Sheriff to enforce it., he foresaw anar-
chy and chaos in Illinois should the
Governor resist with the help of militia
Mr.. Graham declared that if the Gov
ernor were to surrender his branch of
government to some other branch he
would be "little less than a traitor"
II used to be angry when | read the
king can do no wrong" he added, "but
can now see a deep principle in it.
The Governor stands exactly in the po-
sition that the king occupied"
Former Governor Joseph W. Fifer
and George B. Gillespie also argued
for the Governors position that he is
above the law.
Governor Explains Position
Governor Smalls statement read
when Attorney General Brundage
succeeded in securing from the San
canon County grand jury his indict-
ment against me, my first impulse,
knowing that / am absolutely innocent,
was to submit myself to the court and
stand trial in the ordinary course Of
the administration of the criminal law.
Ny counsel, however, advised me that
Continued page thrss)