STATE OF NEW YORK-ASSEMBLY CHAMBER

In the Matter of the Investigation by the Assembly of the State of New York as to the Qualifications of Louis Waldman, August Claessens, Samuel A. deWitt, Samuel Orr and Charles Solomon to Retain Their Seats in Said Body.

Present:

THE CAPITOL,

ALBANY, N. Y., March 9, 1920.

Hon. Louis M. Martin,
Hon. George H. Rowe,

Hon. James M. Lown,
Hon. Edmund B. Jenks,
Hon. Edward A. Everett,
Hon. William W. Pellet,
Hon. Edward J. Wilson,
Hon. Charles M. Harrington,
Hen. Harold E. Blodgett,

Hon. Theodore Stitt,

Hon. Louis A. Cuvillier,

Hon. Maurice Bloch,

Hon. William S. Evans.

Appearances:

For the Judiciary Committee:

Charles D. Newton,

John B. Stanchfield,
Arthur E. Sutherland,

Elon R. Brown,

Martin Conboy,

Samuel E. Berger,

Archibald E. Stevenson,

Henry F. Wolff.

For the Socialist:
Morris Hillquit,
Seymour Stedman,
S. John Block,
Gilbert E. Roe,

William Karlin,

Walter Nelles.

HON. LOUIS M. MARTIN, Chairman.

(The Committee met pursuant to adjournment at 10:50 A. M.)

The Chairman.- Proceed.

Mr. Roe. Mr. Chairman, and gentlemen of the Committee, I do not arise at this time to discuss this case at all, but there is a request which I desire to place before the Committee, perhaps more properly a motion which I desire to address to the Committee, which it was decided by counsel for the Assemblymen before we separated last week should at this time be done. It is not only a proper motion to make, but one which it is our duty to make. It involves the matter of allowances on behalf of the Assemblymen for expenses in this proceeding.

There are two grounds upon which I desire to submit this suggestion or motion to the Committee:

In the first place, these five Assemblymen are the sitting members. They have been called in here to defend their rights to their seats. Their rights to their seats have been challenged and they are called upon to defend them. They are called upon to do that in behalf of their constituents and in behalf of the public interest as well as themselves. The rule, I think, is universal that wherever the sitting member's right to his seat is challenged in a parliamentary body and a contest with regard to that right is inaugurated and conducted, he is entitled to his expenses in that proceeding whatever the decision of the body may be as to his right to a seat.

In the second place, while this proceeding is in form an investigation it is in fact a prosecution or a trial. You understand

I don't say that at all in the way of criticism or complaint. It was probably inevitable that the proceedings should take that form. If this were merely an investigation of course it would be the duty of the party presenting evidence to present both sides of the case, present all the facts bearing upon the issue so that the Committee might have all the facts before it in arriving at its determination. As we all of us know in this case that has not been the procedure adopted. The prosecution, or the attorneys appearing for the ouster of these Assemblymen, have presented their evidence for the same purpose that they would have presented it had there been a trial in court. Where a document has been introduced they have introduced so much of the document as they felt aided their contentions and have left it to us to introduce the balance either to explain away what they had introduced, if we could, or to meet their proof in other ways. The same rule has been followed with regard to oral evidence. The result has been, I think, that the counsel for the Socialists here and the Socialists themselves have given this Committee quite as much aid in spreading before it all the facts as has been afforded by counsel on the other side.

This proceeding would have been very partial and one-sided if the Socialists and their counsel had not pursued that course. So that since the purpose of this proceeding is to arrive at the truth and ascertain the facts, the five Assemblymen and their counsel have aided the Committee exactly as much as the prosecution, certainly, they have been diligent in trying to present the facts within their control bearing upon their contention and upon their point of view, just as the other side has been diligent in presenting facts bearing upon its contention and its point of view. It seems to me the two sides stand upon an equality so far as asking for reimbursement of the necessary expenses are concerned. My request or motion, therefore, is that this honorable Committee, when it shall report to the Assembly, shall, as a part of that report, or in connection with it, make a recommendation that the expenses of the five Assemblymen for counsel fees and any other necessary expenses be provided for exactly the same as I understand the expenses of the other side will be provided for.

Attorney-General Newton.- Mr. Chairman, so far as my representation of the Committee, and my duty as Attorney-General is concerned, I have no concern with the suggestion made by

counsel. Whether it is deemed proper to at any time consider the request made or not is one for the judgment of the Assembly.

I make this suggestion as it is not a matter for this Committee to determine the expense at all, or make any recommendation as to whether counsel should or should not be paid, employed on either side of this controversy. It is a matter which, if I understand legislative procedure, is presented by a bill purposely drawn to meet the condition when it arises; and I am frank to say that, so far as I am concerned, I have no wish to express either way except that justice be done in the matter; but I do not think it is a proper subject for recommendation of this Committee. It is a question for the judgment of the House when the proper time comes and when the question is presented by proper legislation.

Mr. Roe.- If I may say just a word, your Honor. I think that we agree entirely as to the procedure. My purpose in making this suggestion was that it might be made upon the record and be considered by the Committee and members individually, and also to call it to the attention of the Assembly. I think, however, that it would be entirely proper for the Committee, in its report, to state for the benefit of the Assembly the character of the services rendered on either side, and as to whether those services had been beneficial and of aid to the Committee in arriving at its conclusion.

I quite understand that the action would be taken in the case of the expenses of the Assemblymen as in the case of the attorneys on the other side, by some action of the Assembly itself. I may say that the reason I make this suggestion at this time rather than later in the day, it properly would come at the conclusion of the case I think,— is that I may not be able to be here throughout the argument to-day.

There is one other matter I wish to suggest. In going over the record I find that there are a good many errors in the record, which is inseparable from getting a record out as rapidly as has been done in this case. I think the service we have had has been most excellent, quite remarkable, but it is inevitable that there have been a good many errors, some of some importance, which have crept into the record. I would suggest, if it is agreeable to the Committee and counsel on the other side, that each side have permission to file and submit as a part of the record a sort of

addenda pointing out the errors in the record and indicating what the corrections should be.

The Chairman.-That may be done. The question of allowances we will take up in the Committee.

Mr. Roe. One other thing perhaps I should speak of at this time, the O'Hara record which, I think, has been introduced here, was the personal property of Mr. Nelles. We need that for use to-day. If it could be returned to me or Mr. Nelles temporarily and then when we are through with it it will be turned over to the Committee.

It is a matter of some disappointment of counsel for the five Socialists that we haven't our brief ready to submit to-day, but it will be ready within a day or two. It is practically completed and we regard that as a part of our labor in this case, just as it was to try and present the evidence in the case and that will be placed at the service of the Committee.

Mr. Brown. Mr. Chairman and Gentlemen of the Committee. We meet under very exceptional conditions.

The conduct of this trial in this chamber is itself significant of the importance of the issues involved. It has been said to be a trial. It is a trial, but the parties to it are not the parties of the record. It is not a trial between the five Assemblymen and the Assembly of the State. It is a trial between five Assemblymen and the people of the State as to their right to represent the people in this sovereign body.

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The importance of the issue is great, because it involves a procedure and determination on the part of the Assembly as to the right of men who are citizens to sit in this body, a very unusual proceeding. The right has been conceded for hundreds of years for a hundred years since the establishment of the State-yes, hundreds of years if you go back into the colony. And to deny that right there must be a very exceptional condition, and investigation and determination of the question as to whether the right ordinarily accorded should be denied, and that matter is one of great importance.

The Assembly itself, in common with the people of the whole State, are jealous of an exception to a general beneficial rule, and you have, therefore, given to the investigation of the issues seven or eight long weeks of inquiry; every opportunity to