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The Atlanta Journal,

Tuesday, 26th May 1914,

PAGE 1, COLUMN 1.

Ordinance Requiring Supervision of City Police Assailed as Unconstitutional in Answer to Recorder

Charge Compliance Was Impossible Proposition

Detectives say one of their duties in the Frank case was to probe alleged acts of local police.

Following the dismissal of the contempt proceedings against William J. Burns and his chief lieutenant, Dan S. Lehon, in the Superior Court, Lehon and other members of the Burns Agency went before the Recorder's Court at 2:30 o'clock Tuesday afternoon to vigorously fight the case made against them for working as detectives without reporting first to the police authorities.

A written answer for the Burns men was filed in the Recorder's Court by their counsel, Judge Arthur G. Powell, and in it the constitutionality of the ordinance under which the cases were made is vigorously assailed. In the answer, a number of federal constitutional points are made, making it clear that the Burns Agency will fight the case through to the United States Supreme Court, in the event of adverse judgments in Georgia.

Compliance Impossible

The answer of the several defendants was made interesting by the statement that compliance with the city ordinance was practically impossible in the particular case under investigation (the Frank case) since it involved alleged illegal and criminal acts on the part of the chief of police, the detectives, and the policemen of Atlanta.

"One of the principal reasons for the employment of the agency," the answer sets out, "was the investigation of illegal acts accomplished and about to be accomplished by the police."

"The employers of the agency suspected," the answer says, "the city police of having used illegal, improper, and criminal methods for procuring testimony against Leo M. Frank, and that they were engaged in an effort to prevent him from securing witnesses to testify in the extraordinary motion for a new trial then pending."

Hold Ordinances Void

Certainly, therefore, the answer argues, the city ordinances requiring detectives to work under police supervision are void as to the particular transaction.

The ordinances are unfair and consequently void, the answer also alleges, for the reason that one of the functions of a private detective is often the thwarting, by lawful means, the illegal acts of city police. The constitution guarantees personal liberty, and a person has the right to employ private detectives to guard that liberty, the answer says.

The answer declares the right to be a detective is a property right, and therefore it is unconstitutional for a city ordinance to attempt to take that right away.

The Burns agents will make an effort to reopen the office here in the event the courts decide with them on the police court cases on which they attack the ordinances.

Charge is Dismissed

Contempt proceedings against detectives William J. Burns and Dan S. Lehon for taking out of the court's jurisdiction Annie Maud Carter, the Negress whose affidavit was that she heard Jim Conley confess to the murder of Mary Phagan, were dismissed by order of Judge B. H. Till Tuesday morning.

Judge Arthur G. Powell, counsel for the two detectives, was in court at 10 o'clock when the hearing began. The proceedings went no further than a consideration by the judge of the respondents' answer denying they were in contempt of court.

"The court is of the opinion that in taking the witness, Annie Maud Carter, out of this jurisdiction after she had made an affidavit used in the extraordinary motion for a new trial of Leo M. Frank, the two respondents were in technical contempt of court."

"In their answer the respondents have disavowed any disrespect of the court and they have returned to this jurisdiction the witness, who is now subject to legal process. I think, therefore, they have purged themselves of contempt."

Judge Powell said after the order had been drawn dismissing the contempt rule, that Detective Burns was announcing Tuesday that his Atlanta office was closed and that all Southern business done by the agency will be transacted hereafter through the New Orleans office.

Manager's Statement

The following signed statement was issued by C. E. Sears, local manager of the Burns Agency:

"To the Patrons of the William J. Burns International Detective Agency, Inc.:

The business hitherto conducted through the branch office of this agency in Atlanta will be suspended pending progress of the litigation affecting this agency's right to do business in Atlanta.

Matters hitherto referable to the Atlanta office will be handled through the New Orleans office until further notice. The Atlanta office will not be reopened unless the agency establishes its right to conduct its business in Atlanta without being subject to supervision of the local police, as is now required by city ordinance.

C. E. SEARS,

Local Manager."

The license issued to Charles E. Sears for the Burns National Detective Agency was revoked Monday afternoon by the city council, which with only two dissenting voices adopted the recommendation of the Board of Police Commissioners.

The action of the council Monday afternoon came on a resolution introduced by Councilman Claude C. Mason, which called for a revocation of the license, which has only thirty days more to run, on the ground that the Burns Agency has not cooperated with the police and has not complied with the regulations of the Police Board.

Only two councilmen, A. D. Thomson and George H. Boynton, opposed the resolution, and they did not defend Burns. Mr. Thomson said that the papers of the east are making it appear that the citizens of Atlanta have formed themselves into a mob to hang Leo Frank, whether he is guilty or innocent. The kicking out of the man, who ostensibly tried to find the truth in the murder case, he said, would increase that criticism.

He said that he did not approve of the methods of Burns, and that when the Frank case is over and out of the courts, it might not be a mistake to revoke the license, but he considered the policy unwise at present.

Probe of Charges in Frank Case Postponed

The probe of bribery and perjury charges by the county Grand Jury was not resumed on Tuesday because of the engagement of the Solicitor's entire force in the work of checking up the brief of evidence presented by the defense in the extraordinary motion for a new trial for Leo M. Frank.

This work will not be completed until late in the afternoon, and then Solicitor Dorsey and Attorney Leonard Haas, of the defense, will appear before Judge Hill at his residence to secure his signature to the papers, which will allow the defense to appeal the case to the Supreme Court. The papers, under the law, must be signed before midnight Tuesday.

Solicitor General Dorsey stated Tuesday that so much of his time had been required to check up the brief that he may not be able to prepare his showing on the motion to set aside the verdict on the ground that Frank was out of court when it was rendered, by Friday. This means a probable postponement, when the case is called next Friday for a hearing.

Because of the engagement of the Solicitor's force, it is probable that the Grand Jury probe will be postponed until the motion to set aside has been argued.

The definite date for the next Grand Jury meeting has yet to be fixed.

Dorsey May Postpone Frank Motion Hearing

It was indicated Tuesday that further postponement will be asked this week by Solicitor H. M. Dorsey of the hearing on the motion to set aside the verdict against Leo M. Frank because he was not in court when it was rendered.

This seemed probable because the Solicitor was engaged in the brief of evidence to be submitted with the appeal on the extraordinary motion in Frank's behalf. He was giving his attention exclusively to that brief, Tuesday being the last day on which it can be filed. He was expected to finish some time during the afternoon, and Judge Hill was expected to certify it some time later before the day passed.

The Solicitor has spent on this brief three of the days which he said he needed to consider the motion to set aside. Therefore, the further postponement is indicated.

The Grand Jury is not expected to resume consideration of perjury and bribery charges growing out of the extraordinary motion hearing, until the motion to set aside has been disposed of.

Solicitor Will Not Aid Probe of County Board

Any Grand Jury probe of the Board of County Commissioners, which may be inaugurated as the result of the letter of Chairman T. C. Waters, asking an investigation, will proceed without the active assistance of the Solicitor General's Office.

While the Grand Jury has the right to make any investigation on its own initiative, and such a probe would be welcomed by the Solicitor's Office, it became known Tuesday that for the immediate future the Solicitor's Office will be unable to engage actively in such an investigation.

The courts, which will adjourn in June, are already far behind with the criminal business of a routine nature, and in addition the various phases of the Frank case are occupying the time of the Solicitor's force, almost to the exclusion of everything else.

As exclusively stated in The Journal of Monday, complaints of alleged irregularities in the Board of County Commissioners were lodged with the Solicitor General several months ago. The Solicitor is known to have investigated the complaints, and nothing relative to them has ever been presented to the Grand Jury.

If the Grand Jury inaugurates a probe, the information in the hands of the Solicitor will be placed before it.

The discussion of a Grand Jury probe grew out of the recent campaign of Chairman T. C. Waters and Oscar Mills.

Mr. Waters, while not attacking Mr. Mills, made sensational statements regarding members of the Board who were supporting his opponent, he said. Mr. Waters has stated he stands ready to prove before the Grand Jury or any other jury every charge he made in his campaign cards.

W. Tom Winn, another member of the Board, has joined Mr. Waters in asking the Grand Jury, in view of recent criticism, to probe the Board.

Foreman B. L. Willingham, while intimating that a probe may result from the communications he has received, stated the Grand Jury will first complete the probe of bribery and perjury charges in the Frank case. This will take some time as the investigation is being delayed by other phases of the case.

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