not be limited, as would the attorney-general or his deputy, to the action or proceeding specified in the requirement.

You speak of my letters unintentionally permitting public misapprehension as to the suggestion of Mr. Battle's name. While it is true that you did not personally suggest to me the name of Mr. Battle, what could you possibly have meant by your letter of October 15th, wherein you requested an interview with me in regard to the designation of a special legal adviser, when in that same letter you incorporated a section of your presentment to the presiding Judge, wherein you say that the

"Extraordinary grand jury has voted unanimously that your honor cause to be appointed or designated immediately a special assistant district attorney in the person of George Gordon Battle of the City of New York." What could I have inferred from a reading of that letter but that your jury requested of the Judge the designation of Mr. Battle?

On that point let us clear up in the public mind what must be a general misunderstanding as to the power of the Governor to supply the Extraordinary Grand Jury with counsel of its choice. Let us have it understood for all time that neither the Governor nor the grand jury can select any particular person to act as such counsel, so that it was wholly outside of the statute to think for a moment that the Governor could assign Mr. Hughes, Mr. Scott, or Mr. Rand. By no possible stretch of the imagination could that situation be brought about, because I was limited by the statute to request the attorney-general to attend in person or by one of his deputies, and the attorney-general is the only man with a voice in the selection of that deputy, if he should choose not to appear himself. Your letter further states that:

"A review of the cases in which the Governor of the State has hitherto made such orders will, the grand jury believes, demonstrate that there has not often been any such definiteness of specification as is now claimed to be necessary."

In this you are mistaken. I have carefully examined every superseding order made in the last twelve years, and in each order not only is a definite proceeding mentioned, but in nine cases out of ten a defendant is named, the broadest designation being that of an investigation of borough officials in the Borough of Queens, and in that instance there are on file in this office specific charges of neglect on the part of the district attorney and the record of the investigation made by the Commissioner of Accounts for the City of New York, and a charge that the district attorney of that county had failed in his duty, in that he had not presented to the grand jury facts that were known to be in his possession and had not proceeded with the trial of certain indictments already filed.

You are in error when you quote section 65 of the Executive Law as applicable to your situation. Section 65 applies to subdivision 1 of section 62 and authorizes the Governor to employ counsel to assist the attorney-general in any suit or proceeding prosecuted or defended by him in behalf of the State itself, and has no application to duties performed in a proceeding before a grand jury.

Again, you are mistaken when you assume that the Governor could assign counsel to your body under subdivision 8 of section 62, added by chapter 595 of the Laws of 1917, and generally known as the "Peace and Safety Act." That act contemplates a secret inquiry before the attorney-general himself, or before a magistrate, and not before a grand jury. The purpose of its enactment was to provide the State with a form of secret procedure for the purpose of secretly investigating enemies of the State within its borders, and does not empower the attorney-general to supersede the district attorney of any county in any proceedings.

I am not concerned with your contention that the attorneygeneral has the right to act as your adviser independently of me. While I am advised that he has no such power, the decision of that matter rests with him as a constitutional officer, and not with

me.

I regret that you have said in your letter that the purposes of the grand jury might be frustrated because of my "evasion of the issue." I believe that I have made myself perfectly clear, and it is unfortunate that you are not properly advised, as your letter clearly indicates. You have held aloof from the Executive of the State and attempted by vague insinuations to create the impression that the Executive had some knowledge of what was going on before your jury. You call my attention to a decision which holds that a grand jury can report only to the court. I know of no reason, however, why, if the public interest requires it, that report cannot, with the court's permission, be forwarded to me, as Governor, for such official action as the Constitution and laws may enjoin on me. I believe I have been very plain and very concise, and I hold that in all of your written requests you have never laid before me anything that would enable me to make an order superseding the district attorney in any criminal action or proceeding that I would be able to specify in my requirement. I am advised that heretofore, when the Governor has been asked to supersede the district attorney, he has had presented to him some reason for so doing, either in writing or by explanation of the facts made by some party interested.

While I believe I have abundant reason to resent deeply the tone of your communication of the 14th, you may be assured that I shall not let such resentment in any way interfere with the discharge of my duty as Governor, if there is presented to me any matter calling for the exercise of my official powers.

Yours respectfully,
(Signed)

ALFRED E. SMITH.

January 22, 1920.

HON. ALFRED E. SMITH, Governor, The Capitol, Albany, N. Y.: EXCELLENCY.-Let me acknowledge receipt of your excellency's letter, dated January 20, 1920.

Though your excellency and the extraordinary grand jury may honestly differ in the interpretation of the law, the grand jury recognizes the need of action rather than of discussion. Nothing is further removed from its thought than to have reflected on the Governor of the State.

In view of the statement of the district attorney, contained in his letter to your excellency of December 18, 1919, that if any specific charge of crime based upon evidence, is made against the district attorney or any one connected with his office, he would immediately request your excellency to require the Attorney-General to take charge of the same, I beg respectfully to advise your excellency that the extraordinary grand jury is now considering charges against one member of the staff of the district attorney and that it is in receipt of a letter from the district attorney, advising it that he has subpoenaed witnesses to appear before it in relation to an inquiry being conducted in regard to another member of his staff, he having appeared in person before the grand jury in relation thereto. Additionally, a charge is made by an important official of another State against another member of the district attorney's staff and various other complaints or charges against other members of the district attorney's staff, have been presented to the grand jury which has had no opportunity to investigate them.

The grand jury respectfully submits that in the consideration of charges of this character the grand jury should be afforded the benefit of a legal adviser other than the district attorney or any of his assistants. Without such help, the examination of the persons accused, two of whom have already requested to be heard, cannot be properly or satisfactorily conducted.

Therefore, without further intruding debate of your excellency's views in regard to the designation of the Attorney-General as adviser to the grand jury, the grand jury begs to request that the Attorney-General be named by your excellency to appear before it and conduct such criminal actions or proceedings as may now be pending or may hereafter come before it directed against the members of the staff of the district attorney of New York county or against any other person or persons connected with the office of the district attorney of New York county. The grand jury considers that by thus limiting its present application, it is meeting your excellency's contention that the intervention of the Attorney-General may only be required in relation to specified criminal actions or proceedings and that before action may be taken by your excellency, your excellency's attention should be called to the specified proceeding in which it is claimed that such intervention is necessary or proper.

In thus acquiescing in your excellency's view, the extraordinary grand jury is pleased to assure your excellency of its earnest desire for the official co-operation of your excellency.

Very respectfully, (Signed)

RAYMOND F. ALMIRALL,

STATE OF NEW YORK EXECUTIVE CHAMBER

Foreman.

Albany, February 14, 1920.

MR. RAYMOND F. ALMIRALL, Foreman, Extraordinary Grand Jury, 12 East 46th Street, New York City:

DEAR SIR. Your communication of January 22nd at hand and its contents carefully noted. Pressure of official business and illness of myself and family have prevented any earlier consideration of this matter by me.

I am entirely willing now, as I have been at all times since Your Body requested me to furnish counsel to you, to do all in my power legally to comply with your request. My position now is the same as it always has been, that, so soon as Your Body furnishes me with information sufficiently definite upon which to base an order superseding the district attorney by the attorney-general under the provisions of the Executive Law, I will act. I insist that such definite information has not been furnished me as yet.

In your communication you state:

"I beg respectfully to advise your excellency that the extraordinary grand jury is now considering charges against one member of the staff of the district attorney, and that it is in receipt of a letter from the district attorney, advising it that he has subpoenaed witnesses to appear before it in relation to an inquiry being conducted in regard to another member of his staff, he having appeared in person before the grand jury in relation thereto. Additionally, a charge is made by an important official of another State against another member of the district attorney's staff, and various other complaints or charges against other members of the district attorney's staff, have been presented to the grand jury which has had no opportunity to investigate them." You also ask in such communication

"that the Attorney-General be named by your excellency to appear before it and conduct such criminal actions or proceedings as may now be pending or may hereafter come before it directed against the members of the staff of the district attorney of New York county, or against any other person or persons connected with the office of the district attorney of New York county."

There are some fifty men connected in various capacities with the office of district attorney of New York county. I insist that I have a right to know which member or which members of the district attorney's staff you desire to investigate, and for what crime, or for what official misconduct, before I direct the attorney-general to conduct such an investigation in place of the district attorney.

If Your Body will furnish me with the name or names of the member or members of the district attorney's staff that you desire to investigate, and also state to me the crime or crimes or official misconduct with which such member or members is or are charged, to the end that I may so word the designating order as to be in conformity with the letter and spirit of the statute, I will act. I will not, by a superseding order such as you ask, place the entire staff of the district attorney in the position of being under charges for some undisclosed indefinite offense.

HON. ALFRED E. SMITH, Governor, The Capitol, Albany, N. Y.:

EXCELLENCY

14th instant.

Let me acknowledge receipt of your excellency's letter of the

For the purpose of securing the services of the Attorney-General as legal adviser to the extraordinary grand jury, and without acquiescing in your excellency's apparent conception of the necessity of specifying charges, the extraordinary grand jury defers to your excellency's requirement.

The extraordinary grand jury highly appreciates your excellency's expression of willingness to do all in your excellency's power to legally comply with its request, and your excellency's promise to designate the Attorney-General on receipt of the specifications your excellency is pleased to require.

Because of the preference of the grand jury not to link together the name of a person and the charge of an uninvestigated crime, the grand jury takes the great liberty of enclosing herewith a memorandum of the names of three members of the district attorney's staff particularly referred to in the grand jury's letter, dated January 22, 1920, with a statement of the crimes with which such members are charged.

With expressions of esteem, I am,

Very respectfully,

(Signed)

RAYMOND F. ALMIRALL,

Foreman.

Memorandum

(1) John T. Dooling, charged in connection with Alexander F. Reichman, with a conspiracy to falsely and maliciously indict one Gaston B. Means for the crime of murder and to procure said Means to be complained of and arrested for such crime in violation of section 580, subdivision 2 of the Penal Law. In connection with the investigation, thus far made of said alleged crime, some evidence has been presented indicating that crimes in violation of section 580, subdivision 6, section 1846, and also section 376 of the Penal Law have also been committed by said Dooling.

(2) James E. Smith, charged with various violations of section 372 of the Penal Law, and with neglect of duty in violation of sections 1841 and 1857 of the Penal Law, in respect of the investigation and presentation of gambling and disorderly houses.

(3) Edwin P. Kilroe, charged with neglect and omission of duty in violation of sections 1841 and 1857 of the Penal Law, in failing to present and prosecute charges of larceny made by Thomas B. Donaldson, Insurance Commissioner of the State of Pennsylvania, against George F. Montgomery.

February 19, 1920.

MR. RAYMOND F. ALMIRALL, Foreman, Extraordinary Grand Jury, 12 East 46th Street, New York City:

DEAR SIR. Your communication of February 17th at hand. In accordance with the request contained in your communication, I have this day directed the attorney-general, under the provisions. of section 62 of the Executive Law, to attend in person, or by one of his deputies, the Extraordinary Term of the Supreme Court appointed to be held in and for the county of New York on the 11th day of August, 1919, and before the grand jury drawn for said term of court, for the purpose of managing and conducting before said grand jury all proceedings, examinations and inquiries and any and all criminal actions and proceedings which may be had or taken by or before said grand jury concerning or relating to 1. John T. Dooling, a member of the staff of Edward Swann, District Attorney of New York county, growing out of or based upon any violation or alleged violation of law rising through or from any act or transaction on the part of said John T. Dooling in violation of subdivision 2 and subdivision 6 of section 580 of the Penal Law of the State of New York and sections 376 and 1846 of the Penal Law of the State of New York, in connection with the indictment, or the procuring of the indictment, or the attempting to procure the indictment of one Gaston B. Means.

2. James E. Smith, a member of the staff of Edward Swann, District Attorney of New York county, growing out of or based upon any violation or alleged violation of law rising through or from any act or transaction on the part of said James E. Smith in violation of sections 372, 1841 and 1857 of the Penal Law of the State of New York, in respect to the investigation and presentation of complaints and charges against gambling and disorderly houses in the city and county of New York.

3. Edwin P. Kilroe, a member of the staff of Edward Swann, District Attorney of New York county, growing out of or based upon any violation or alleged violation of law rising through or from any act or transaction on the part of said Edwin P. Kilroe, in violation of sections 1841 and 1857 of the Penal Law of the