Chicago Daily Tribune Newspaper, January 31, 1874, Page 2

2 CIHICAGO DAILY "RIBUNI SATURDAY, JANUARY 31, 1874, THE GAGE CASE. Formal Motion Before Judge Rogers to Quash the In- dictments. Mr, Dexter Holds That the Qity Charter Repeals the Law of 18383 The Council’s Approval of Loan- ing the Moneys Bars an Indictment Under the Charter. (tago Should Not on That Aceonnt Do Indicted Under & Law Which Docs Not Apply. Mr. Swett Claims that.the fidavit Made by Mr. Gage Was Dlegal. An Indictment for Perjury on Such an Aflidavit Will Not Tiold “Money on Hand” Means ' Money Chargeable to the Treasurer. Mr, Reeds Holds that the State Law of 1833 Was Re-enacted in 1868, tle Also Claims Gage Swore the Money Was ““On Hand” When It Was Not. The Court Reserves Its ,‘ Decision for Some Day Noxt Week. THE INDICTMENTS. Tho argumonts ou tho motion to quash the In- dictments in the Goge caso were mado in the Criminal Court yestorday, and occupied both the morning and afternoon scgsions. ;Tho room was roasonably full of peoplo, and the romarks of tho distinguishod counsel for the defendant wore listened to attontively. Mr. Gage was presont all day, 08 were soveral of his moro intimate acquaintanoos. Judgo Rogors ! ogouplod the bench. THE OABE WAS OPENED a8 follows : 2 Mr. Roed—I am ready, if the' Court plense, to take up tho motion in tho case against Mr. Gago. The Court—Very well, Tho Court Is ready at any time. THE PRELIMINARITS, Mr. Doxtor—Mr. Reed, which' of the indiet- ments is first in order 2 Mr. Reed—No. 551,—the ono for failing to pay over monoy. 5 3 Jr. Bwott—In conuoction® with these in- dictments, I want to fllo a copy of the rosolu- tons and ordinsnces of the Council, which nre swarn to, and tho aflidavit of Mr, Gage. Mr. Reed—TI admit that, Mr., Bwott—Then I would like to have the nd- mission entered on the record that the affiduvit filed is o copy of the ono upon which the indict- ment is based. 4 Mr., Roed—You know it is a true copy ? Mr. Swett—Yes, it i, Mr. Roed—I have no doubt it is, your Honor. Mr. Swott—That this is & copy of the afiidavit upon which the indictment for” perjury was ob- tained, and that no other afidavit was rworn to or progented o tho Grand Jury as tho basis of this indictment excopt this. TIE FIRST INDICTMENT. The following i the indictment to which the argument of Mr. Doxtor was chiefly diraoted : Siate of Illinols, Cook County, ss, O tho January ferm of tho Orimiusl Court of 'Cook_County, in said county and State, in the year of our Lord oue tliou- sand cight hundred und soventy-four, The Graud Jury, choseu, sclocted, snd sworn, in and for the County of Coo¥, in tha Stato of Xilinols, in tho numo and by the suthority of the peoplo of ‘the Blato of Iilinols, upon tholr oatha present that David A, Gnge, lato of the County of Cook, au tlie 16th day of Deceniber, in tho year of our Lord 1873, in sid County of Cook, In tho Btate of Iilinois uforesald, was tho ‘Teeaaurer of tho Clty of Olluago: and that ' the suld Gago was the Tressurer of safd City of Chicago for aua during the term of lireo years, and moro finmediutely prior toond precoding thie duy sud year lust afore- eald; ond thul in aud during the time afore- enid, lie, the said Gago,was iustructed Ly law as sucli Trensurer lo recelve, safely keep, and disburao divers_large sums of monuy, currout bank bills, and United States notes, commonly ealled monoy; and that Lo, the sald David A. Goge, s such Troasurer, in, sud during the iimo aforesuid, in tho county uforesaid, did receive for safe keeping ond diubursoment in enidl Gity of Chicago, and County of Cook, divers Inrgo sums of monoy, turront banik bills, and Ustited States notes, commonly called monoy, tor wit : Tho sum of $507,703,68, and that the said aum of $507,703,58 was then and thero a fund establishad by Iaw for publio purposes ; aud thut the suid David A, Gage, us such Treasuror, did not dlsburse, and as such Treasurer bas ot disbirsed, the said sum of £507,- 703,68 ; and that afterwords, fo-wit, on the 10th duy of Docember, 1873, the term of oflicof autd David A. Gnge, ns such Treamuror, oxplred, and that on the day and 'yoar last aforesuld, Danjel 0'}ara, who bacame nnd was, nnd over since hus been, and utill is, the said Treasuror of the Oy of Chlcagd ; aud that Le, the #uid Danfol O'lfara, then and thero Lecame, nnd evor sinco hus been, and stlll s, tho lawful’ suc- ceasor in oflice of suld David A, Gage, s such Treasurer, and that tho eeld sum of $507,704,48 was, and alll tn, owned by, wud fs the’ proort of, o City of Clifcago, afgrosaid, and was, und is, a portioi of the public Tevenue of 'aafd Clty of Ohi- cugo ; and that afterwards, on the Gth day of January, 1874, Insuid olty, county, and Biate, th said Duniol O'iiora, a8 such Treusurcr, and ns such successor of suld David A, Gage, us oforesaid, did_duly demand of and from i, sld Gago, paymont of and dulivry to him, sald O'lfurs, a8 such ‘Creasurer and_succeasor, the mukl sumn of $507,703,68, he, tho raid Gage, belng then and there required by [aw Lo pay over and deliver toenil O'Liara, us such Treasurer, the naid sum of $301,703,68, and be, the wald 0'Hara, as such Treasurer, bolug thett nd Ui (lio oficor fo_ \om wuch pay= ment and delivery sbiould and ought by law to bo made ; and that ho,” the said David A, Gage, not re- arding his duty assuch Treasurer, 1id - then aud ero, on the day snd year aforesaid, "unlawfully fall t> piy over und deliver to Dunfel 'O'Hura, o8 such Trousurer and wiccossor, the suld sum of $507,704,08, coutrary to the tatute and against the peace and dige ity of e kanio Deople of the plato of Tlinoie, —— MR, DEXTER'S ARGUMENT, Mr, Dextor—If it plense the Court, thero are two indictmenta against Mr, Gago,—one for not paying ovor public money holongwng to tho city, tho othor for porfury, or an alloged falso state- ment in rogard to vity balauces, FAILURE TO PAY OVER, I shia!! firat dlscusy tho Iudictment for not pay- ing aver, nw it is obvlously the principal chargo ngainst My, Gngo,—tho charge for an illogal fuleo statonent bolng but un incldent or corol- lary Lo it. It will bo admitted {hat if Mv, Gage hos not unlawfully approprinted this money to his own uso, and Los o good lognl excuso for nol paging over the same, it then be- comes of littlo consequenco what stntements he may or may not have mado under oath in re- gard to the city balances, as they will aud ought to bo viowed in tho light of the facts connected with the more important lndictment, to-wit: that of not paylng over city money in hia pos- Hosuion, THE ALLEOATIONS, ‘Ulio Indlotmont for not pnylng over nllogos substantinlly that on the 1610 day of Decombor, 1878, David'A, Gago was Trossuror of the Cily of U]l\cnpln, aid hod boonL'ronsuror for throo yoars aud more prior to that daloj that an nueb "rensurer hio had racoived ©607,703.68 that this pum was o fund ostablished by Inw for ublio purposos ; that sald Gngo, as Lrensurer, ins not disburned the sanme; that on tho 10th dny of Docomber, 1871, his lorm of ofiico ox- pired ; that Mr, Daniol O'Ilorn is tho succonsor of Mr. Qago ns Clty Tronsurer ; that on the Gth day of January, 1874, Alr, O'Harn, as Tronsurer, domanded of Mr, Gage pnymont pud dalivery of the #nid sum of snm?}m".bs. but that Mr, Gago did ublaw fully fail to pay over tho same. NO IMPROPER AFPROPNIATION OITARGED, Thero {8 no allogation in the indictmont that Mr. Gago has improporly appropriated this bal- anco to his own uso, or, indecd, made sny uko of it. Tho Indictmont' in silont with rogard to tho intontion and motives of Mr. Gnge, but stops with tho assertion of tho indopondent finaneinl fact that Mr, Gage has failed, upon the domand of Mr. 0'ifara, to pny over the alloged balanco said to be in Lis kand. ACT AND INTENTION. Tho fandamentn) clause of the criminzl codo of Tiliuols, und all othor orkmiual codes, dofines & crime to bo tho union and joint npumtlun of nct und intontion. 'Thora ean bono folony withont a telonlous intontion, ‘Tho allogation that the de- fondant unlawfully rofused Lo pay. ovor, means nothing moro than that ho refuses, contrary to tho act roquiring him to pay over, and docs not cure this radical defoct in tho {ndictment, It atands donuded of any criminal purpogo. We shall hand ‘precudunls to the Court on this point. It is n fatal defect. LAW UNDER WHIOK TiF INDICTMENT I8 FOUND, Tho statutes of Illlnow, sines Chicago tirat bo- came o city, or indeod for the Inst third of a con- tury, are gearched in vaiu for any law which makes tho mere neglect or rofusal of & public officer to puy over publio mmw{, without asorib- ing nuy motive for tho act, n folony. t is found, upon & moro romote. oxsmination that fn July, 1883, & erlminnl code was adoptod by tho Gonoral Assombly of Illinois, and that upon tho sixty-soventli sootion of tho samo the State's Attorney ling Leon driven to haug the in-~ dictmont against Mr, Gagej which soction s an follows 8¢, 67, If nny oflicer or person who now is, or liere- after ‘mny bo creatod by law, to collect, dlaburse, to- colve, or safely Leep nuy mouty or noncys, rovenus or revenucs, belongiug to this State, to tlouchool-fund of this State, to the sehool-fund of any county or town- slip, to auy couuty iu this State, toany canal, turn- plke, or saflrord-fund of this State, or any'county thereof, or to the President and Directors of the Stato Bawk, or to auy fund for the fmprovemont of suy pub- ife road, rivor, crock, or other weter-courso bordering on of within this State, or to any other fund now bee ing or horenfior to be cstablished by Inw for public purposcs, anid who shall foil or rofusio to pay over ail Totcys, warrauts, Dllls, notes, and ordora which any such oilicer’ or persous should recelvs for disburcement, and hos mot disbursed, or shall eollect, or shull recelve, or shall receive for safe- Xeoping, belonging to this Siate, to any county of this State, or to any guch fund as nforesaid, wlien such ofticor or person aball be therealter required by law, and demand duly made by tho successor or auccessors of such oflicer or person in oftiee, or by the oflicer or person to whom such moneys, warrants, bills, notes, or orders ouglit, by Inw, 0 be ruh! over, or his or thelr attorney of agent ‘duly anthorized iu writing, 2igned and acknowledged, §f auch demnnd be practica- ble, overy such oilicer or porson ahall, on cowviction thereal, b punieiad by confement In the Teniten- tiary for any teeu nof vk than: ono (1) year, nor more thai (10) youre. $ » . » . TIE LAW 13 INAPPLICABLE. Wao deny that tlis law of 1888 has any applica- tlon whatsoover to Mr. Gage's cave. We nasort thus it was not intended to apply to City Troas- urers, and does not upply to them, but that it was Jnnigned entirely to protoct Stato funds, and the! any tndietnfent based upon it against city oftiinls must fall. THE TAW OF 1863, Ay preliminary to the dixcussion of this ques- ton, it may ba abrarved that if Mr. Gago, ng v City of Chieago, has committed nat tho public morals, and thero Wwere 1o other nw, suve the one invoked by the State's Attorney. rather than loaye the public remeodiloss, the judicial mind might loan towards the most comprehensive construction of the atatuto in quostion. But it will be fonud to bo not ono of the least remarkablo circumstances in these proceedings against Mr. Gago, that n particular and specitic Iaw, passed by tho Logislatura of 1ilinois in 1863, pregonting o comploto plan and remedy in rola- tion to tho duties of City ‘Lronsuror, ling been Enmed over, and a_genersl provigion invokad, aviug, e it will BRPOST, 1o application ta tid cam, B If the Legislatufe of Illinols, in 1863, passod ariatuto which is found to embrace & complote dystem in rolation to tho duties of City Yreagurer, with all tho dotails nocoseary to carry it into nclive operation, forming & complete and dotniled schiemo upon that subject, ‘and it bas beon found upon examination of the facts in Mr. Gage's caso, that an indictment 2an- not for substantinl reasons bo sustained against him under that lnw, thon, huving in view those principles of justice and fair trentment which evory vitizen may have oceasion to involo at somé poriod during bis lifo, it gives riso to a stroug prosumption that public iuterests did not require thot auy indictmont at ol should be found against Mr. Gago. "The particulur aud dotniled scheme of 1863 to which I refer, with its amendmoents, is ag fol- laws: Tho Treasurer ond City Collector, and all recetyers of city money, aro_hereby vequired’ 1o keep sufely, without loaning or usiug, nnless difterentiy directed Dy ordiuance or resolution of the Common Councll, all the clty or publio moueys collocied by them, of ofhierwike ot any timo piuced fu their custody or s posul, until the samo ave paid over, or directed by the proper oflicer, warzant, law or order of tho corporation 10 bo transferred or paid out, aud to makoall paymeuts and trausfors promptly whon thoreto required by nny law or order of eald corporation, or under any regula~ tion of the Comptroller : and if anty one of said oflicers, ar of thoso connected with thomiin the collection, safo- keeping, or Alsbursing of #aid city revonuos, sball con- vert to'his or thelr own use in auy way whotever, or shall ure by way of inveatment in any kind of prop- erty or merchandise, or sball foan with or without in- terest, unless differently directed by ordinauce or resolution of the Conmion Council, nny portion of #nld clty monoys intrusted lo him or them for safe- keeplng, disbursesont, payment, trausfer, or for any ofhier purpose, overy atich nct shall bo deemed and ad- Judged to Lo an embezziement of so much of the palil inoueys us shall bo thus taken, converted, iuvested, used, or loaned, which fs hereby declured a folony, aud any oflicer or ugent of eaid city, snd all persons udvisiniig or participatiug in sald act, or belug o party thoreto, sbull, upon cobviction bofore auy cotirt of competent jurisdiction in this State, bo seitenced to {mprisonment for u torm of not less than six (6) months nor more than fen (10) yoars in the Peniten- Uary of this Statos aud nlso be fuod equal to the sum of money embez: = INTEREST ON DEPOSITS, And if, in this conucction, it bo romembered that tho law allowed tho money belonging to the city to bo loaned with the consent of the Uom- mon Council, and that the Common Council hod, not once, but many timoes during dlr. Gage's torms of ofiice, by official proceodings -spread upon its records, expressly recogoized tho fact that Mr. Gogo was loaning the city fuuds; that tho City Comptroller roforred to the samo fact in his roports, and ncknowlodged roceipt of interest on such lonus, in bolialf of tha city, of considorably moro than ono hundred thousaud dollars (3100,000) ; that tho Mayor of the oity mude publio montion of and commended tho pructice, and that the peo- plo at Iarge made the samo fact a distinct politi- el wsuo ; and whon wo return to the special luw of 1868, and find that, if such loans were un- Iawfully mado, then that, in the languago of the act, ““All E«monu advising or participat- jug in wuch act, being porty therctu, shall, upon conviction, oto.,, bo soutencod,” otc., ' wo discovor manifold rensons oroditablo to the eagacity and astutoncss of tho Btate's At- torney, but not in‘the same degreo to the public senso of justice, accounting for tho vaub atrides which took the Grand Jury over all resent and specifle laws upon this subjoet, buek forty yenrs to n genorul and obsenre ono, enactod “bofors Chicago even bad oxistonce, TOWENS O} 'Till; COUNCIL, In the act of 1803 which I huve read, the Jurisdiction of tho Common Council over the oity fundy is eloarly rocognized, Tho injustice of proceeding ugaiust Mr, Gago undor an old law ante-dating tho existonco of Obicngo, and ong which includod, of courso, no pormission of tho kind voferred to fu tho luter uot, will uppear from o rofereuco to the proceedings of tha 'Common Council of the City of Olicago, had In relation to this subject, and which rocords, for the pur- poses of their discussion, are ndmitted to bo be- fore tho Court, and we thiulk it will appear from the racord of Council pracoedings now submit- ted that, if tho city has suffored » loss, it is but the natural and almost inoyitablo result of the policy ombarked upon by that body, Who ocan answor for the long preservation intact of any fund for the keeping of which competition of banks is invited? You might as well invite oqmpotition of in- dividuals on any other fuud to be losned ; of courke, tho loast responsiblo would pay the highost rate for it, It 1y idlo to chargo the rosults of this pornicions practice upon any ono porson, COMPETITION OF DANKS, As onrly as Dee, 20, 1569, the Common Council roferved fo its Finuncial Gommittee tho following rosolution s i siesolved, ‘That the Finnnce Committce Lo snd {ho wnino aro hisreby instructod to prepure snd roport to the Common Councilat ity next regular mectiug, attor baviug irst fuvilod tho competition of tho baniks au | ordinance designating tho place or placen of doponlt whera the City Treasuror, Oity Compirolier, ntid Hehool Agent aliall keep all moneys and fiinds bolong- ing to the City of Obiengo upon sush forma and condi- tiona and upon snch reeuritics as Will tend the most satety to the best futereata of tho vity. No notion was taken upon this resolution, it belng deomed ndvisable to leave the wholo wnbtor with the City Trensurer, INTEREAT RECKIVED, Doc. b, 1870, in the anuunl report of 1lis ITonor tho Muyor, s found the following & I sm gratifiod to bo ablo to report that tho City Treensuror lins pald to the Complroller $64,820.07 for intereat which “he has collected on dopusita of city funds for the past year. This i belioved to bo tho first timo tho clty b roatized anything from this nonree, and it 8 an oxatplo that it {8 preaumed will bo followod liorealter, Dee, 19, 1570, the Olerk presonted a eommunication frowmn the City Treasurer coverlng n atatement of in- terest on ity deposits, AlL, MeAvoy moved thut the communiention ho pub- lished and referred to the Committes on Fiunnce, “Tho motion provalled, Thp following is the communlcation : 10 tiin Honuy the Mayar, anil Common Council astembled: GENTLEMEN: 1, a8 Troasurer of tho Gity of Chica- g0, inve the honor to report to your houorable body the followiug statement of intoroats recedved by ine an thio clty depoaits, all of wiich I have returned fo the Ojty Oamptroller for the bencht of tha city, Very re- apeeitally, D, A, Gaor, Treasurer, On0aao, Doc, 5, 1870, BTATEMENT, Amount recolved ax intereat on depoaits. Ta.d to Comptrollor..s ves Cuzoado, Dec, 6, 1870, QITY COMPTROLLEN'S REPORT. Jan, 8, 1872‘ ot tho roquost of the Common Counll, the City Comptrollor made tho folluw- ing roport : 04,820.07 ot 04,320.07 DA\ GAax, Trosuirer, CITY COMPTHOLLER'S OFFICE, Citzoauo, Jau, 8, 1872, To the Mayor and Aldermen of* the City of' Chicugo in Com- mon Connci sembled : GNTLEMEN : In rosponss to s resolution of your honorable body possed Dee, 18, 1871, T rospectfully ro- ort that tho Clty Treasurer, tho 11on, David A, Goye, 6 doporited fu tho Clty Trénsury aa ntorest on city dopaeles o sum of $04,820.01 Tollows In Oetober, 1870 1$45,000,00 « 19,80,07 In December, 1870, Total., +4404,820.07 Hospectfully submiticd, Gronar: TarLon, Clty Comptrollor, NESOLUTION ADOPTED, Fob, 10, 1872, tho following resolution passed tho Common Couneil ¢ Itegolved, That tho Commities on TFinanco bo and fhioy uro liereby inotgucted to report upon the fols lowing: Pjird—ltow milch money Lus there beon paid into tho Gty Treanury during tho tywo yeara onding Doc, 1, 1671, a8 tutorest an clty deposita 7 Tiie following 18 tho roport: Your Committes on Finance, to whom was referrad tlio anoxed rosolution, would' xeport that they luve ndvised with tho Olty 'Gomptrolior in regard to thoe mattera referrod to fn the resolution, and. respectfully roport. . . . . . In auswer to the third Interrogatory : “Lhera Los been pafd in interest on city doposits for |Ilg a‘_’\n years ending Dac, 1, 1871, the sinn of $100,~ 820,07, Jun, 13, 1872, W. B.'Batriiay, Josern L, Oris, L. L, Doxp, Commiiteo on Fluance. (13.) CouNory PROCEEDINGS, Yeb, 20, 1873, Teport of tho Clty Comptroller of 1o bslances in tho Clty Treasury, quatterly, from Dec, 1, 1869, 1o Doc 1, 1871, luld over sud publishod Feb, 13, 1672, Ald, Holdon moved that the communicatton be re- forrrd to the Committeo on Finance, with natructions to examine the roport and ascertaln if tho original proposition to pay 41 per cent per aunim on afl bal- ances {n the Treasury for thie pust two years 1o the city has been complied with, and nlsv to negotiato with D, A. Gage, City Tressurer, portaining to the smount of intorcst to bo paid dnto tho City Treasuryas interost on the balances in the Treasury for the years 1871, 1872, and 1873, and report facts to tho Council, “tlio motion provailed, {14 Counorx Pocezninas, May 30, 1872, Ald, Dateham, of the Financo Commitiee, to whomn s réforred o report from tho Clty Compiroller of Datances In tho City Treasury, quartorly, from Dec, 1, 185, to Dec. 1, 1871, nubmiticd & report thercon, Ald. Holden moved that the report be concurrad In and pibllsbed, ] The motion prevailed, Tho following §8 the report : Tothe Mayor und Aldermen of the @ity @f' Chicayo in Common Couneil assembled & Your Committea ou Finance, to whom was referred n cortuin statemont of tho Oty Comptraller of cortaln Lalances in the City Treasury «quarterly from Dec, 1, 1819, to Dee, 1, 1871, with fostructions *‘to sacertain whethior tho original proposition to pay 4} per cont por nnnum on ail balauces dn tho Treas- ury, for the pnst two years, {o tho clly hns bouh complied with; also fo negotiate with D. A. Guge, City Tressuror, porlaining to {ho mnount of intercst to bo pald into the Cily Treasury, a8 intereat on the balances iu the City Tressury for ilio youra 1871, 1872, and 1473, and roport the faoth to 1he Lommct wouid Teapecifully repoet tunt ticg iave inveatigntod the facts, and find that on Dec, G, 1809, Mr. Guge sent » communication to tho Council, sccom™ pauying his ofiiclal boud, in which ho atuted thut lie wotld be pleased if tho Council would designate s ank, or Luuks, for tho doposit of city moueys, and errunge for recelviug {ntercst thoreon, thiereby reliey- {ng him from his bond and the great responslbilit, attached to the office; but that af tho Council should decide to put the rosponsibility on tho Treasurer, and refuso to direct him whare to doposit tbie fundy, he would inform the Oouncil that he had modo arraugoments with four of the principul banks to allow 4)¢ por cent por anuum ou averago balances, ‘That he could make such arrangements withi tho banks by reason of not having requosted any bankor or ro- celver of much doposit lo sign the same, and theraby he would bo ecusbled to gob ¢ of 1 per cent per annum additional interest, The commuuication cloged with tho following : “ The componsation of tho City Tresurer 18 amall, and I trust you will increase tho #aine £0 8h MINOUNE commensurate with the responsi- bility and largaly increased duties of tho ofico,” This communlcation was on the same doy roferred tothe Finauce Committeo, who o not appear to have mado any roport thoreon, Your Committeo hns ascer- {ained thiat the Finsnco Comnitica had ono or moro interviews with Mr, Gage, and that the Commitieo do- elded that 1t would ‘bo bad policy to mako any chango in tho salary fixed for tho Treasuros, to wit : $3,500, and that, under tho circumatances, it would bo best for ‘him to retain from the interest such amount as would compensate bim for the m:unqemnnt of tho ‘funds, aud for tho risk hie incurred i luunisy the money, The amount of such compeueation was dlscnssed at thoso interviews, and it was estimatod by thoso partfes that thie 2¢ per cent would probably produce about §10,000 o yeir, uud as the 4X per cent that could bo obtained, \wiie J¢ per cent more than what wos usually paid by reapousiblo partios upon dewnnd loans of that kind, it appears to have been undorstood by tho parties, Mr, QGage and the Finance Committes, thnt Lo sliould deduct such $10,000 per an- numas » reasonnblo compensution for the manage~ 1ent of and risk assumed in tha losning of moneys, Yiasimachs an B, Gugo ws undor o fepal abligation to puy over any of the monays recelvod as intorost, and from the fact that tho nocessary clerk hirs of his office exceoded by $—— tho smount of his salary as Treasurer, the srrangement would appear to have Deen o not unreasonable ono, The arrangement, we aro advised, met with the approval of the thou Mayor, Comptroller, sud Gorporatiou Caunsol, BA I'ho Treasurer’s books show the {ntereat nctually colved by him (during the two years mentionod fa‘iio resolution) to liave been $131,620.07. Doducting tho fuld compensation of $10,000 per anuum, for tha Lra yeurs $20,000, leaves utercst to bo pald over §101,620.07, M. Gngo, the Troasurer, paid over, prior to the pas- nago of the rosolution, $100,820,07, leaving » balance of $1,000, which your Commities found to be dus the city, 'l'll{xl amount Mr, Gage has since puid to the Comp~ troler, Wao would state thiat Mr, Gago appents to have un. deratood that the $500 per annum excoss of clork hire ot liis oflice over Lis salary was to be also allowed him, and for that rosson retalued the sama but, ss your Cominittes could not autlefactorily detorming thut to liave been the arrangement, Mr, Gago, without hesita- tion or objoction, immediately paid in this extra $1,000, I rospuct o 46 much of thie rosolution aa roqulrda e to nogatiute with Mr. Gage as o the interest {0 bo patd on deposits for bis present term, your Committeo would roport that Mr, Gage informs us that lie is now, us ho wou ot the commoncement of his former term, ‘willing (hat tha Council should manago tho doposit of city funds und desiguate the banks whore the sumo are to Vo deposited, and (horeby rellove iim from the care and rospousibility atiending tho ssme, if the Council should think proper #o ta do ; Lut, if not, aud the caro and responalbility it to devolve upon bim, he can oul; ay that by puat covese Iu regard to the clty fundsan fuforeat theroon i the ohly gusrantos that e s desir- ous to give us to what will be his conductin the future, Inamnuch as Mr, Qago Lus pald juto the Cily Trens- wry nearly $102,000, recelved for interest upon eity de- posits during tho'past two yoars, which L was undor 10 legal obligation to do, and o8’ 1o 8 tho first Treas- uror of tho city who hina 0t treatod the Interest mouo; i 1ho porquisitos of his ailice, your Committes axs o the op}nlah that, rather than to undortako the risk of {ous wliich might occur through the Council wndertak~ Tug to manage this matter, it would Lo for the intorest of tho city Lo leave tho doposils under tho control of Mr. Gage, relying upon Mr, Gago's afficial bond as so- ourity 10 the city, sud belioviog, a8 to payment of the iuterost, that his past course s gutlicient” guaranteo as to the futuro, Reapeotfully submitted, W, 11, BaTeian, Jorern L, 0118, L. L, LoND, Qommittee ou Finance, EFFLOT ON CRIMINAL TROCEEDINGS. ‘Whatever mny ba thought to bo the legal offect of theso prunnediuqu, Tthinl it must bo admitted that, in & orlminal investigation,whera intontion constitutes the (inwnnmn of the orimo, it would bo gross injustico to allow an Indietment to stand against Mr, Gago, based upon hLis conneco- tion with tho Trousury Departmont, that did not upon its fuco nogative the exouso for nat paying over, which was found, not in any proviso, but contained in the body of tho only comprohousiva enaotment upon the” subject to be found iu the statutes of Illinois, and tho indictmont 1w order 0 0 good must allege a orlminal intention in all casos, excopt whero the oot mpon its faco imports o orimol; but if tho act bo of an indifforent uature, liko that of not paymng over monoy, which may bo iunocent, tho allegation of the not unox- plained by the allogation of an intontion, is ju- sufliclent. OITY TREASURERS NOT INOLUDED, Tt will bo admitted that the cuse of City Trens- uvers doos not, h&) spoocitlo enuweration, como undor the lawof 1838 — Ollicors or persons ntrusted with State funda, with rehool tunds belonging to thia Atate, with achool funds holoniging to nny oty ar townhip, or fnds holongs Ing to the canal, tnrnpike, or rallrond fund, or fo aiy eniinty, or to tho Siato Dank, or for the Improvement of any rond, river, creok, or other wator-contso— aro inecluded by sporific enumoration, which ralson tho prosumption that thologislative inton- tion stopped with tho 1imit of tha onumeration ; Dt b \rh bo olalmod that the case of tho Clty Tronanrer of Chiceago fatls undor. the following innguags: *Or to uny fund now bol nfi,ur hore- uftor to bo entablisl.od by low for publie pur- posos,” 10 APTLICATION TO CITY FUNDS, Wo eny thiat Lilx apylics oply o tho Stato and other countorated funds, Tho more important uestion bofors this Court s the intontlon of tho ilacglulnlllm in pagsing this act, ‘Iho logislative mind conld hardly have eutortained an intention in raspect to that which did not oxist, and at tho dnto of the passngo of this Inw thoere wna 1o City Govormmont of any kind or dosoription whetsoover within tho confluos of tha Common- wenlth of Iitinois; ko that if It shall bo found that the Jaw gauge of the nct i broad snough to {ncludo C“E Trensurors, it is quite acoldental, and cannot be thoe rosult of o specifio purpose on | tho part of tho Assombly to includo such ofli- cers, but o cnvoful imspection of the toxt and slructure of the sct convincen tho mind that it cnn hava no appliention to Lhe cago now beforo this Court. n tho first place, tho monoy In Mr, Gago's oustody was not *n fund ostablished by Inw," and undor no other clwuso is it claimed that do- fendaut's enge can bo brought. NO FUND ESTABLISIIED DY LAW. The City Governmont of Ohlengo was catah- lishod by law, and there the lnw stopped. By tho granting of tho City Chnrter of Uhicago, no f\m&( was ostabliskod, forno fund might ever exist, "ho fund iu Mr. Gago's cuslody camo from o varioty of sonrcos—selling property, rounts of property, taxgs, over twonty in all—which, Wo a8k, was ostablished by law? ‘Thu artitlcind porson authorized to transact business, in the course of which money might ncoumulate, was entablished by law; bitt the funds thuas nccumu- lated in nonccurato gonso wora cstablishod by Jaw more than tho monoy found ia the Trensury of any other corporation, such ns & raflrond company ereatod by law, or any ono of the man bundred manufacturing companios domg busi- neen in the borders of Iilinois by authority of tha laws of Illinois. Tho Oity of Chilongo was authorized to ralse money pracigoly a8 tho conntios or townships euumorated in tho act wero, yot thelr cnumera~ tion expressly rofutes the construction maiu~ talnod Dy tho Stato's Attornoy ; for, if tho lan- guago ** or to any fund now being or hereafter to be established by Inw for_public purposcs,” was intended to cover all funds in which the publio 1ind an interest, then the Logislaturo wero guilty of an nct of gront suporiluity. in the followlng enumeration : Any money or moneys, revemis or revenues, e longing to thin State, to the schiool fund of this State, to tho kohiool fund of uny connty or township, to auy county in this State, to any canal, tuznplke, ot raflronil fund of tuis Stato or any county thereof, or to the Presidont snd Directors of the Htato Bauk, o to any fuud for the improvement of any public road, river, crcek, or other water-courso Lordering on or within thiu State, or to any other find now being ar horeaftor 1o Lo cstablished by law for public purpuses, All this might havo beon omitted, sud tho en- tire purposoe of the act accomplished, by having it briefly rend as follows: 1f any officor or person whonaw is, or horeafter may ‘o entrusted by lnw lo collect, disburse, recelve, or safely kecp, ALy money OF moiicys, revenila OF fov- enuo, belonging ta this State, or to any other fund now heing or hereatier to be catabilshed by Inw for public purposen, "Pheir particular enumerntion destroya tho only construction that will embraco Mr. Gago's cnug, and clearly shows. that tho Legislature, by the worda '*established by law," mesnt estab- lished by divect provieion of law. ‘THE REAL MEANING, The general words ¢ belonging to this Stale " ut the begluning of this soction, the slructura aud evideut purposo of tho aot, forbid the idos thab it was Intondod to apply to tho officors of City iGovornments, which, at that period in tho history of this Commonwealth, had no oxistence ; but foreibly suggest tho construction {hat, after an cnumoration of tho funds which might boloog Lo tho difforont_subordinato arms of the Stato Government, such as school funds, township funds, the words ‘*‘or to any other fund establishied by law,” moans other funds of liko character as tho abovo ; i. o, State funds catablished by direct approprintion of the Legislature, such 18 an appropriation for im- provemont of the Penitontiary, or for asylums, and matters of that sort. THR ACT OF @' RFEPEATED. : 1Ir, howover, the CouleShall be of opinfon that the net of 1838 was_intonded to and does il clude the caso of the City Tronsurer of Ulicago, we have then to sugitest thas tha spbscquent act of 1869 workod n repeal of thie act of 1833, Tho rule wupon this subjoct is, that s specifio and detsiled stututo in re- Iation to & particular class, works arepeal of provious general laws Laying rolntion to that class, 80 that whonover n Iator statuto is found [ to embrace & complete systom upon any subjact, with all the nocessary details to carryit into active oporation, then ibe presumption is that it contains all tho {)m\'iulm\n that the Logisla- turo intonded should be_incorporated into the pystem ; that it was the Legislativo intention to jgmoro the provisions of all former laws upon @ snmo subject not actually incorporated into tho new law. If tho recent laws are in- completo, auxiliary, or amondatory in their nature, thon it is prosumod that tho Logislaturo intended all prior laws upon tho snme subject to bo con- ptrued along with them; but, if comploto in thomsolves, comprising the whole subjcet un- der consideration, then, as wo have said, it is Frcumpml that the Legislatura, by their adop- ion, intended the repoal of all former laws upon the samo subjeot. "Tho rule is well stated by Chief-Justico Breaso, in an opinion filed only lnst February, in tha Supremo Court of this State, in tho onso of Iloward Z, Culver v. Third Nutional Bank, And there is to bo found a numerous class of casos whoro it is held that a general law doos 1ot ropeal or suspend o prior speciol or local law on the same subject mattor. ¢ The fair corollary from this proposition lg, that aprior gonaral Inw is suspended or repenled by a subsoquent local or special law on the sauo subject mattor, In saddition to thedotailed and particular scheme enncted in Boc, 81 of Chup. bof the ity chartor in 1808, thoro is furthor specinl pro- vision qun tho samo subject alleyad. to be cover- ed by the law of 1833, which will bo found in Seo. 8 of Ohap. 5of tho oity chartor, and which is as follows: 1t shiall be the duty of said Comptroller, as nearly as may Do, o chinrge all ofitcors in the recelpt of rovenues or mouoys of the city with the wholo amount, from time to time, of such receipts; and Lo shall counter- sign all {nx and asscssment warrants for the colloetion of rovenuo, {ssued under any ordinance or law of the clty by virbuo of which monoy ia reccivablo, or to o roceived or paid nto the City Treasury, oxcopt ware rants for Lo collsction of water rents, or asuess- ments, charging tho proper officer tho amiount collectable thereon, sball nlso require of all officers in recelpt of city moreys, that they shill submitroports thereof, with vouchicrs and receipts of paymont there- for, Juto the _City Treasury weekly or ‘monthly, or as oftén ns weshnll seo Ait to require the same by auy reg- ulation which he may adopt : and if any such officer shall negloct to muko an_ adjustmont of his accounts when 0 requived, as_aforcsuld, and pay over such mounoys so recelved, it shall then bo the duty of the guid CQomptrollor to issuo a motice in writing directed to such oflicer ' and his socurities, requiring him or them within ten duys to make soitloments of hLis sald mccounts with the Comptroller, snd to pay over the balance of monoys found to be due and in his hands, belongivg to enid oity according to tho books of aaia’ Comptroller ; sud 1n case of the refusal or negleet of such oflicer to ad- ust his sald accounts, or puy oyer sald balancs to tho ‘reaqury, 04 raquired, it shall then be tho duty of tho #uid Comptroller to mako roport of the delinquency of euch officer fo tho Mayor, who shall at otsco suspond I {rom oMen; and the Nayor shal heroupon proseua fortuwith to fustitute the nocessary proceedings for tho semoval of sny such ofticor ; and ko is Lereby author- fzed, In case of such suapension, to appoint, “with the concurrenca of tho Common Counct, soine’ othor per~ son to oxerclse the functious of sald oflice whilo such procosdings ore pending, SPECIFIO PROVIAIONH, Wo are thus furnished In the luw of 1803 with a lnter and a spacifio provision in regard to the only subject in relation to Oity Troasurors, whicl, it is olaimod, tho law of 1893 covers, to- wit ¢ tha refusal or nuqlnot of the City Treasurer to pay over city fund in his possossion. I'he ponalty is mildor than that inflict- ed by the Ilaw of 1833, Dloiug ‘*‘iustant doposition from nud forfoituro of oflico ;" but it s to bo obeorved that 1t Is » more renson- able pennlty for tho moro refusal to pay over, than that prnvldm\ by the act of 1888 ; bocause, if » Olty Tronsurer had the public monoy in his osuecssion, and from mere willfutlness, refused o0 pay it over, then ho should bo justantly de- posed, and o man put in his stoad who should pay ovor; but if the rofusal to lmy over aroso from the fact of embozzlement, then the aot of 1608 provided sovero and approprinte punish- mout, 50 that it will be found, upon an inspeo- tion of tho Inw of 1808, that adequato provislon hue Dboon mado in doteil - for tho correction of maladministration, and sovora punishment of offensos in_conneotion with the administration of the public funds of the City of Chicago. In “United Statos v. Tyuen, 11 Wallaco, 88," it {6 held that whero thore nro two nats of Con- gross on tho sume subject, and the later nob embracos all the provislons In the firat, and also noew J:uvlulnnu, and finposes difforent or addi- tional poualty, the lator act oporatos, without nuy repenllng clause, as a repeal of tho firat. EXCURRS FO NON-PAYMENT. The nct of 1898 provided only this oxcuse for not paying over ¢ If {tappear that such faflure or refusal shall bs 0o~ casfaned by unavoldablo loss or necldont, The act of 1863 hns anothor, namely: it the monoy had boon ‘“loanad by suthority of tho Common Counoll ;" thorofora the not of 1803 per- mita what _tho firat act forbids, and, in tho lan- gungo of Judge Fleld In tho caso alrendy clted ‘Whon ropugnant provisions tiko thoso oxist bolween two nate, tho Inter act s iold, according to all tho an- thiorities, o operate ns a repeal of tho firat act; for the later not uxrl'en. the will, of the Government na tothe manner in which the offouses sbbll Lo subse- quently treated, b TIHE INDICTMENT FOR PERIURY. I ahall lonve to my brother Swott the task of prosenting in dotail or objeotious to the indlet- mont for porjury, ‘Chis 18 anothor indictmont undor a ropenl law, upon an afidayit which ia hofore you. TUE AFFIDAVIT, It would be quite remarknble if the law had roquired any such afidavit as this ; and as re- markable for any man to suspoct fre. Gngo of intonding to swonr falsoly in making this aftidavit, boenuso overybody conuected with tho dlby Government, and, indood, tho groater part of tho population of Ghicago, woll knew thut for tho last four yeara Mr, Gage Tiad heon losuing the clty monoy, and paying tho proosads of such lonna into tho 61'.1 Treasury, FORMERLY NEQUIRED, 'L'his form of aflidavit had beon once required by law, in 1803, boforo it was permitied to loan tho city monay, and bofore in fact It hnd beon loaued 3 but in 1869, when the city, togother with Mr. Gage, ombarked intho loaning busi- ness, smendmonta appropriate to the new entor- riso, wero framod sud Insorted in the old nw i 80 that, for the purpose of the do- cision of this caso, .tho old Jaw munst Do yand ns though the words of.tho nmendments hnd formed originally a portion of it; and wo shiould thon have, which {8 all the lnw now to bo foundton tho statute books of Illinols upon this snbject, the following provision : "That bo [tlie Olty Trénsurer] * lina not convorted to his own une unlnwrully, or suifored any one tonulaws fully use, loan, invest or convert to their or his use unlawfully auy of the publio moweys,” THE LATER TORM, ' - The first act, in accordance with which tho afil- dayit was made, forbids abuolutely any use of publio mounoya ; the lator avt perwits such usoe, ond only roquires that it shall bo lawlul, 1t s m({{ worth whilo, in the prosenco of lawyers, to discuss this question. Tho aflidavit upon which the indictment is basod {8 an oxtra« judicial one ; tho oath was administored by an oflicor hnving no antuority to administor oaths, oxcept ay mz}ulred by Inw, and a8 this oath, nor nothing like in, was roquired by law, it is clearly oxtra-judicial, with no more effect than tho prpor upot whial it vung writton, eforo tho Court adjourns I would like to pre- sont this inatter, which has juat reached mo, LEGISLATIVE CONBTRUCTION. - Of course, what wo aro sooking to get at is the logislative conuttuction, the lepislative inten- tion, upon the subject of this statute, The Log- islature nover dies. It Is alwnys prosent. Thero ling been o bill+ roI)orlm], which L hold in my hand, from the Joint Committes on Revision n the Legisinturo of the State of 1llinois, which amnendy this section {n tho Inw of 1833. 1t is on~ tiled ** Withuolding Funds,” and ronds ag fol- lows : SEOTION 2L1—WITHIOLDING FUNDA, It any Btate, county, town, municlpal, or other officer or_person who' Liow fu, or lcresfter mny be, nuthorlzed by law to colloct, 'recelve, aafely keep, or disburse any, monoy, revenne, bonds, mortguges, coupons, Lank bLills, notes, warrants, or dues, or othor fuuds or socuritier belofiging to the Blate, o any county, townsliip, iticorporatod city, tow, or villaga, orany Btato iustitution, or any _canal, turnpike, ruils road, achiool, or collego fund, or tho fund of any pb= Ho §mprovement that now {s or may hereafler bo au- tharized by law to be made, or any other fund now in helng or tlnt may hereafter ba eatablished by lnw for public purposes, or bolonging to any nsurance or othier compuny or person, Tequired or sutborized by Jaw to b placed fn the keoping of any much oflicer o person, elll fafl or refuss to pay or deliver over tho aame when required by law, or demand {s made by his Bitccestor {n oflice or trust, or tho offier in person to ‘whom the sald should Lo paid or delivered ovor, or his agent or alforney, mithorized in writing, Lo shall Lo {mprisoned in the Penitentinry not less than ono nor ‘more than ton yenrs ; provided, such demend need not be mndo, when, from the absenco or fault of the offonder, tho #amo cannok convenfently bo mado; and provided, that no person shall be commit- ted to the Penitentiary under this scction, unless the ‘money not paid over shall smount to§100, it st nppeara that such failure or refusal Is occasloned by unavold- able loss or nceldent, Every person convicted under the_ provisions of this section ahall forover thoreafter bo ineligible and disqualified from holding any offico of honor or profit in this State, Thnt 15, the Logislature, that in the oyo of tho law 18 always presont, has, so far as the pro- sumption of this bill will indlcato, which bill lay not yot become o Inw, deolarad tht city ofilcors, in our legislative judgmont, are left out of this aot of 1863; and wa will thoreforo put thom in now, It may betakon asan oxpression of the legislative mind on that question. sttt MR. REED'S ARGUMENT, Theo Stato's Attorney thon said: If the Court ploase, what 1 have to eay in re- lation to these questions will be very brief. 'THE FIRST OBJECTION made to the indictmont for failing to pay over, is, thet it does not allego any criminal intontion, T will auswor that by quoting our statutes and the declsions of our SBupremo Court. On pago 109 of Gross’ Statutes, Sce. 403, cccurs the fol- lowing ¢ Evory {ndictment or nccusation of the Graud Jury sboll Do deemed sufliciently techuleal and correct, which states the offonae fu {he termx und linguage of this codo, or 5o plainly that thio usture of the otense may bo easily understoud by the jury, That is the provision of the statute. Inow rofor the Court to 3d Scammon 1, page 283, the enso of Mitlor agaiust ''he People. I'hie reporier #nys, after tho rendition of tho verdict against the defendant (Miller), exception was taken to tho indictment becauso *it did not charge the offonse to have boon committed feloniously.” The first point made by the counsel is, that no criminal intont i charged against Mr. Gago in tho indictment. In tho indictment against Mil- ler thore was not a syllablo of roferouce to any criminal intent on his part, and the Bupremo Conrt aflirmed tho vordict against him, Mr, Rteod thon quoted from 1 Seammon, 801 ; 4 Scammon, 609, 10 ; 24 Tlinols, 263 47 Dlinoin, 468, to show that if tho indictmont was in ac- cordance with the statute it was a good ono, and :hu: it was not necossary to allega oriminal in- out, Ho contined : It is not contended by theso gontlomen—T have Licard nosuch suggostion from them—that this indictmont is not inthe lan- gungo of the statute. I do mot kuow whether thfi will mako any suol. r. 8wott—No. I8 TI(E OASE WITHIN TIE LAW ? & Mr. Reed—It is suid thera is no objestion to tho indictmont, that it does 'not fol- low tho statute, That brings ma to a moro important queation, I call your Honor's attontion to Pnge 170 of Grose' Statutos, I will read such part of ‘the soction as is nocossary to discnss the question s to whetlor tho case of Mr, Gage falls within its provisions by a fair and reagonable construction: * If any oflicer or orgon who now is, or lereafter mny be," oto, When this statute was possed, the Legialature did not intond that it should oporate upon offi- cora then exlsting who were charged with the colloction, recelving, and disbursement of publio money; but it says, **who now and hereafter muy be,” showing that it was tho iuteution of tho Legislature to exiend it to any porson or officer who should aftorwards be lawfully in- trusted with public monoys,—to cover ull por- sons who should como within_its provisions for- over aftor, until tho law abould b ropealod. 1t any ofiicer or person Who oW 18 oF Lioreafior may bo Intritsted by law to collect, disburse, recolve, ar gufely keop any monoy oF mMONOYE, FOVONHlo oF Tove: nues, bolonging to this Blato, to the school fund of this Btato, to tho schoul fund of uny county or townslip, or to any other fund, ote. INTENT OF THE LEGISLATURE, Novw, if the Legislaturo did not intend to covor any other funds than thoso doescribed here, wh wiis additional languago pub into the stafuta Why did not thoy stop after tho enumeration # 1t thoy had stopped thers, the statuto would not have applied to this enso,—to Mr, Qage, City T'ronsurer of Chicago. If they did not intond that it should apply to other cnses than those mentioned, why weore the words, * or auy othor fund, now in being or lherenfter to Lo establishod by law for public purposcs,” ingort- odin thelscction? It sooms to methat is a very foroiblo proposition, Why did thoy put in more words thau wero necessary? Why was this langungo inserted, if the Legislaturo intend- od to contine tho oporations of the scotion to the, ofticors and {:orunnu uamod ? I'lioobvious answer is, that the Logislaturo thought they might omit some ofticer who onght to bo covored and gov- ernod by this statute, and they put in those camprohensivo words go that nnz’ oflicer or por- son could fnot oscaps simply becsuse ho was not moutioned in tho statute, Tho indiotment alleges that Mr. Gago was U'roasuror of tho City of Olifeago ; that ho colleoted and recoivod, as such 'T'rensurer, n cortain amount of monoey ; aud that the same was thon and thero a fund ostab- ligned for publio purposcs. 'I'hese words were Insortod in the ntatuto for some purpose. LET ME ILLUBTRATE by roforriug to some other soctions of thisorim- innl code, Therois s statute which punishos Couuty and 'Lownship Treasurers for embozzlo- ment. That statuto is almost oxactly like this rovision of sho city oharter, concorning whioh {hn learued gontlawan hiny talkod, nmwiha [ tho punishmont of tho Oity Tronauror if ho | tho Treanury of sald ity at tho dato of much account, uson tho monoy; but tho words ‘“any | andthobalinco of monoyA in th Prex 2 other fund now in belng for publio_purposos” | and that Augusius 1L Iurley “w:‘;m Lfi;l;\‘ '“gui do not ooour in thatuoction at all. It will be | thoro tho Comptroller’ of wald 'City of Ghie found on pago 165 of Gross' Statittes, and who- [ Ci#0: 8id the ' porson nnd officor * by whom sold ncconut was by Inw to Lo rendored #nld A such Trensnror. And tink hoy oo ad aaa! @Gage, waa thon and thero required by Inw to verify ealll ‘nceount by hix outh, aid 0 nilach maid osts {5 mald Accl!lllll‘ and filo the sarme, with said nceount, in tho propor ofileo of o aald Qomptrollot ; and that lioy the satd David A, Gago, ns such Treanurer, did, on the. AnldGth day of “Dacomber, In (ho year of our Lord ono thousniid ofght hnndred nnd foventy-threo, in fafd Couuty of ook, render to aniil Augustus IT, urs Iey, na suld Gomptrofler, an aocount slawlng tho atato of 'tlie "Lreantiry of mifd Olty of Ghlcno, and tho Dalanee of moneys fn skl ‘Treasiry on thie 1st day of Decombor, in tho year of our Lord ouo thousand olght lundrod nd sevonty-threo; and that hio, (o eald David A, Gage, an such Troasurer, was thon and there roquired DLy law, and it was thon and thoro lis duly, s Bich Treasuror, fo rendor to ‘mld Compirollor tho amount 'Inst aforos nald, and that ke, tho said David A, Gage, as iich easurer, was then and fhero required by Inw to vorify satd fast-named aceount by his vnth, aind to o #ald account nud tho ald oath attnched to thio pamo In tho proper aflco of sald domptrollor ; and that b, the Bk David A, Gago, 08 Lo was then and thero required by law to do, did on tho Bald 0t day of Decombier, in sald County of,Cook, appear fn his own proper mon beforo ono ¥rancis M, Darrott, hie, the nokl arrolt, belng then mid thero a Notary Publio fn_snd for aaldCity of Ohicago, In snid county, nnd did then and thore produco and prosont to Aald Francls AL Tarrolt n cortaiu sfMdovit, partly written and partl ovor wrota that aoction of tho chnrter must hiave soon this law and copled it, and Insortod it, be- cnuso that section did not cover it. [Mr, Rood thon rend thosootion refarrod ta,) 1f your Honor will notfce this scotion, if doos not say, ‘‘or any other fund establishod by law for publio purposes,” so that Mr. Gage's caso would not como under it. The lxm{{\mgo is in no sonso ns brond n8 that of tha sootion uudor which the in- dictment is framed, I'he County Tronnnrer of Cook County may bo indlotod for two offensos—for nsing the county funds, converting them to his gwn use, undor this soction, and may be sent to tho Poniton- tlory ; that is for smbozzlement, Under tho soc- tion in question fn this onso, tho County rons- uror could bo indictod for an entirely differont not. e aould not bo convicted of omboezzlemout for rofusing to pay over tho monoy. THE NEW ACT. But_this ast was passod to cover that, and mako him r eriminal® who refused to turn over the money to his succossor, The seation undor consldoration les nothing whatever to do wilh ombhezzloment—hns nothing whatover to do with the loaning of tho city's money, or with its un- lawful use. Iihas no reforonca to that kind of a caso, but refusing to turn over tho monoy is a rinted, of Ll vi dlstint, ‘indopondabt erimo, Mr. Gago 'In not Eimntors, ana oo By Al 22y charged with embezzling the monoy. Homight | a8 such Treasurer, wss fhon and thoro on the bo oliarged with that offonso undor Boo, 83 of the | Aoy nnd * yoar lwt nforestd, nnd fn iho clty and county aforosaid, in ' duo form of Iow, sworn befora and by tho snid Francis M, Dnrrott concerning tho truth of tho matters coutained in sald afiidavit, ho tho axid Fraucia M. Darrott, as_ such No- fary Pulilic, then and thore having full powor and au- thority to administor axid oath to maid David A. Gngo i thit bohalf ; and tliat ho, the sndd David A, Gage, Uelug a0 ro sworn as aforesnld upon Lis onth s aforo~ #nid beforo tho suld T'ranoln M. Darrott, Nolary Pabe Hic, an aforesnld, hie, tho said Darrelt, ns mich Notary ulbllo thon aad there lnving full power and authority to adminiater o ssid, oath to auld Gago in that Lt linlf, did tlien and thord wnlawfully, falscly, folontonse 1y, willfully, and corruptly, in and by s said amdavl opons, awear, and atate (anong other things) “{n subs stanco and to tho offeat following in a mattor myforial to tho poiut in quostion, ihat n to sy tha thoro was on the ' lat day of Decom~ Bor, in the year of our Lord one thousand elght hundred and seventy-three, in salil ‘Freasury, s bale alico of moneys of §1,118,110,40 ; and that thors was then and thoro, on tho day and year lant sfarcsaid, In tho Dbands of him, tho sald David A. Gago, ss such Trease urer, the safd sum of $1,118,110,49 in monoy, ay Yz tho anld aflidavit now on Ale f tho proper offics” " Comptrollor of eaid City of Ohicago moro fully s - Inrgo nppears, Whoreus, 10 truth and in fact, thero wasnot then and thoro on {hio duy and yenr 1ast aforesaid in salil Treasury o balauco of monoys of 81,118,110.49, nud eas, in truth and in fact, ho, tho saidl David A, Gage, as such Treanuror, did'not thon and thore, on tho dsy and year Iant aforcsnid, bave inhis handa’ the um of $1,118,110.49, And 50 tho Grand Jurors uforos snid, upon tholr caths aforcsntd, do may that Lo, tho fafd David A, Gage, dId commit ‘willful ond corrupt porjury in manner sud form aforesaid + contrary to hio atatuto and against the peaco and digaity of the samo peoploof tho Stats of Iilinofs, The montbly roport of Dee. 1, 1872, upon which the indictment for perjury is framed, is admitted by tho Stale's Attornoy aid proved by aflidavit to bo tho oath of Mr.” Gage, made on tho Gth of Docombor Inst, and that the same and no other was pregouted to the Grand Jury, and, oharter, if ho were {;u(lty, Tho Grand Jury found no such indigtment but I have cited these tivo #ootiona to show that ovon under tho statutes the County Tronsuror or tho persons named in Boo. 16 may bo convictad of embozzloment whon we can provo they are guilty of using the monoy, and that they may also be” indictad and convicted for refusiug to pay over what mouoy thoy have. NO LANGUAGE CAN DIt DROADER than Sec, 10, the one undor which this indict- mont is framod, If it doos not cover Mr, Gago, no language could, unless overy ofticor was spo- cifieally mentlonod. I want to refor to our bribery statutes to {llustrato how common it fu for the Le?lfllnlum to specify certain ofticors as Leing within the statutos, and to uso words gon- oral in thelr import tomclude all others, Bec.b, pogo 185, of Gross' Btatutes, will how that it {8 acommon practice of law-makera, both in Con- gress and tho Legialature, to dofiue cortain por- sona 08 coming within o certain section and thon to say ‘‘or any othor porson,” or “any other officer,” of such and such a charactor, without nmulu[i him specifically. Tho plnia ronsou for this is that n0 man may escape sim- 1))] becansa tho Legislaturs hos omitted to mon- ion him or his ofice. ENBEZZLEMENT. I hiavo no doubt that, if the Grand Jury hnd beon sntisliod froar the vvidence that Mr. Gage hind beon gailty noder Soc, 33 of the ombnzzlos ment of monoy, ho would have boen indicted for it, for that aud rofusing to pay over the moncy nre difforent aud distinet charges. To find an indictment for ombozzlomont it would have boen naecoseary to aver knowlodgoe eithor that he had invosted tho oity's money in some kind of proj erty or merchandiso, or ‘had converted it to his own uso; and to prove that. it would | it jg the snmoand only oath upon which the have beon nocessary for the pros- gt el F e e 1 e ok ek he mcglvu # Jury in this cnse is assignod. For rensons pro- gonted by this dooument, not apparent upon tha rocord, wa movo to quush the indictment, of which this instrument 18 conceded to be tho legal foundation, ' ‘The principlo laid down is not that mattora of dofouse may be heard upon this motion, but tho object of such extraneous evidonceis to show that tho indictment fails to rest upon s logal foundation. 'Thus whero an indictment hna heen found by mistake, or reported ns a true Dill when it was intended to bo ignored, or whero it was found upon unsworn evidenco, or by sn illegal body upon illogal evidence, such oxtranc- ous facts may bo eatablished by affidavit and considored Dy tho Court. If tho indictmont is shown to havo no losnl foundntion and existonco it will bo quashed. 'The aflidavit of Mr. Gage, constituting tha foundation of the indictinopt for porjury, boing thus logally*before the Court, wo claiin the indictmont should boe quashod bo- causo the monoy ; ooond, what lio hind dono with it, "I'he indictment would not bo like this one, be- cnugo under this indictment all that it is nocos- sary to prova is_simply that ho recaived the monoy. A demand was madé upon him for it and lie failed to pay it over, witkout ahowing what ho had done with it. Mr. Swett—Under this indictment, do you contend that, it we proya that AMr. Gago had loanod the monoey by the authority of tho Cotn- mon Council, and it” hnd boon loat, that that would not Lo n propor dofense ? Mr. Reod—I am talking about the indictmont on its face; not as to what defenso they may bring to it when thoy come to try thiscase. I will ‘state hore, and I may state it as o fact, for it appeared before the Grand Jury,—I do not know whother thore is suy impropricty in saying it,—that ) THE SPINT TUE GRAND JURY MANIFESTED in the case waa fuir; that, if it bad appeared by tho testimony that Mr. dngo had losucd this monoy to A, B, 0,and D, and liad thoir papoer, and they could not ppy on account of tho ponio, or for somo otbor reason, and thal that was tho' roason why ho did mnot pay it over, no indictment would havo been found, The Grand Jury wore digposod to invostigata both sidesof tho cnsg,—tho Bofons as well aa tho _soousation,—ond the mattor’u talkod over. Tho Comptioller aud Corporation Counsol, nho were in oflice during Mr, Gago's term wero examined theroe ; but the Graml Jury did not find tuat this money bad beon loaned to A, B, and G, atinterost. DOLS IT COVER THE CITY TREABURER ? The question to ho decidod is : Does this uto (8cc. 16) covor tho City T'reasurer f Chict 1f it doos, then the indictment, {s sl right, nui th‘min other things arc matiors of dofonse on the trinl, . Tho Legislature hhs expressly re-enncted the laws of 1833 by an act passed in 1869, On pago 418 of Gross’ Btatutos, Socc. 20, will bo found ¢ “The several ncts or parts of; acts contalned in_sald ook [Gross' Statutes, compliation of 18G8] shall bo deemed and taken fn all courts in this State os prima. faclo evidence of whnt tho Iaw waa at the soveral times when, by tho dates therein given, thoy purport to have been passed, and of what {he law now i, uuless It shall be mado to appear that wome orror hus been wmade ; and in that case such crror shall in no way affect 58 evidonco the residuo of snid work, The law of 1833 is not an old law now, buta new lnw, pussed since tho City Treasurer camo into existonco and Chicago becamo the great and wondorful city she is. . TENURY. That is all I have to say upon this indictment, But a word about tho othor. TFrom the argu- mont of the learned gentloman, & bystander would imagine that Mr. Gage hnd boen indicted for falealy swearing about somo ugo or loan of tho money. The indictment is for no such thing, If it wore, it probably could not be mointained. Mr. Reed thion read from Bee. 35, page 422 of tho City Charter, in reforenco to the returns and accounts to bo mado by tho officers in tho Cit{ Trossury Department, and continued: resume that it is the law, though could not find any suthoritios upon it, that, 1£ & statuto proseribos the form of nn onth—uuya.. **which oath shall ba in substance as follows," and then gives a form, and if the party mmaking such onth should dopart from tho substance, the law would nat hold him to bo 'f“mf of perjury, Dot that is not this caso at all. Tho form of onth Is not given or roforred to in tho statute, which snys Lo shall swear to certnin things, sud *if any ono of mid state- monts is falso, ? the said porson so making .such stntoment shall bo docmed uilty of willful and corrupt nnr]urg, and shall o punished accordingly.” All tho chango that hns boen mado in the requirement of the oath, undor Beo, 35, i8 that it should read * unlawfully nsed."” This indictmont oharges him with swoar- ing that on the 1st day of Docember, 1873, Lie bad over 81,000,000 in his hands, and avers that hoe did not havo it. That part of the statuto is not modifled, is not ropealed, is not affocted in any way, shape, or manuer by the amendmont of 1869, because the smendmont does not rofer to how much monoy he has in his honds, but eays tho word “unlawfully” shall bo inserted beforo the word *“uso Tho argument that the aok of 1863 was amonded by the act of 1869 does not apply to this indictmont. Thoe act of 1833 says that if tho statement he #wore to ia falso e ig guiltxy of willful and cor- rupt perjury. Therefore, I submit,that the in- dictmouts ought to bo sustained. i e, MR, SWETT'S ARGUMENT, Mr. 8welt, after recapitulating the loglslation on the subjeot of the Oity Treasurer, tho mau- ner in whick he sbould keop the funds, ote., road tho following affidavit ou which tho indlet- ment for perjury ia based : State of Itlinots, Cook County, City af Chicage, sa : 1, D, A, Gage, City Treasurer, being duly sworn, upon oath goy that the foregoing atatowent, 80 far aw I know or have resson to bollave, I8 & fulr, accuzato, and full statement of the mattors to which it ro- Intes, aud of sll monoys in my hands, or which I, or sany ono for me, has rocelvod since my last oficlal account was rendered ; aud tliat T have not directly or indireotly usod, loancd, in- Yeated, or convertod (0 my own uso, or sutferod any one to use, loun, invost, or convers to his or $heir own uso, any of the public moneys recelvable or roceived by me, or wibjoct to my warraut or coutrol, and thut I hoye rendered strueand full account thercof in my said Torogolng atatvment, aud further saith not, A, Gaak, Ollfi Trensurer, bifore mo, this Oth dsy of TraNo D, BAvRKTT, THE AFFIDAVIT IS TLLEGAL. Tha afidavit in reforence to the custody of tho city moneys, inAwhich Mr, Gago appears ta swear,” ““1 havo not directly or indirectly nsed, loaned, or invested, or convertod tomy own usa, or suffored any one,” otc., . . ‘‘of the public monoys,” is simply a mistake, 1t was 2, mistako in tho officor over to have administerod® prdh ap cath, anda mistako in Mr. Gago over ta tuken it. No Tmtonan is made by the to's Astorney that it involves auy logal im- portance, and it is not ombraced in the indict. mont, or in any wav alluded to in tho record.” 1OW TILE ERNOR OCCURRLD. Tho mistake ocourred in this wige : The char tor of 1803 xur}nlmd tho city to furnish a pluce tor the deposit in kind of city monoys, and mada it folony in its financial officera not to place and keoep the monoy thue sopurated and intact. Honco the law required the afiidavit above sol forth, Forms for such reports and aflidnyita wore aupplied to tho Treasurer’s office, aud tha onth above given was printed upon tho back of such forms in fine, nureadable type. When Mr. Gago and a now administration cama into power in 1809, afcor a loan and usc of tho city funds had been agroed upou, and a lnw R:ssnd to legalizo such nction, theso printed aMi- vits wore not changad to snit the new ordor of things. ‘Tho lnw, after that change, mr]nirml the aflidavit torend, ,*I Lavo uot directly or indi- reotly unlayfully dsed, loanad, o invested,” oto., or the word unlawfully should have been insert- ed in tho old aflidavit boforo tho word used. * WIAT MR, GAGE THOUGHT, What Mr. Gago thought he sworo, and what the law requirad, was that he had not unlawful- 1y loaned or usod tho funds. What ho appar- ontly ewore, what he ignorantly went through thoe form of swearing, was what hoe and all the city ofiicar lnow to bo untrue. Tho rocord of tho City Council, horotoforo printed in full, shows tha at tho vory timos tliese onths, month aftor month, wore boing filed, Mr. Gago was nsk ing tho city to taka tho matter of loaus off his hands ; and when the ity refused to do it, they arranged that ho should lonu the moncy whoro ho thought bost; that tho city would pay him §10,000 o year for such sorvico; that all thiy timo the Mayor, Comptrollor, Corporation Conu. sel, and all” the Common Council know what was being done, and approved it. The city having made out of theso lonns more than $100.000 the firat two years of Mr, Gago's administration, upon a full iuvestigation of the facts, nuthorized him to continuo the sama eourso ib the futnre, manage and use tho funds a8 ho plensod, aud positively rofused to dircct ar control him, bocause by directing bim losses might ocour, and without such direction thoy thouglt thoy could recover all losses from him ond Lis bondsmen, ‘Thorofors, ns the resolution of the Council expreussly shows, it wag dotermined to leavo Mr., Qago to his own courso, tho city relying upon tho profits in cago of succoss, and tho bonds iw caso of logs, NO MOTIVE, As theso facts appear by tha racords of tho Common Counell thoro can bo no possible mo- tivo assigned to Mr, Gago for knowingly falsoly wswearing thnt he waa not lonuing or using the movey. No law roquired him to make guch au afiidavit, The party to whom it was mado not only did not require it, but, and if erther Hnrty hiad rend it, it would bavo been s self-ovi- ont untruth, Mr, Gago cannot, tho;ofore, bo indicted for aweoring that Lo did not losn tho aity funds unlawfully, bocauso he did not so swenr, Ilo cnnnot bo indicted for swenring that Lo did not loan the oity funds at all, because that oath, being based upon a ropealod statuto, involva n mistake of both fact aud law, nud croates noither legal nor moral linbility. For theso roa- sous he is indicted, not becaunso of eithor of theso oathe, he ono taken not being required by law, and tho other required by law mnob boing taken, tho Hialo's-Altorney has cndonv- orod to flank the statutes roquiring the Troasuror to gwoar he had nubgutnd with tho possossion of the money, or that ho had not parted with tho rounosuiau of the monoy unlawfully, and attach 0 lum the linbility of theso onthe without hav- ing token them, by using_cortain exprossions of spooch found in the law olsowhoro aud nover de- u?xuud to bear upon this queation, and which waro used for a purpose wholly forelkn, The indictmout undor consideration fs in sub. atance for swearing that Mr. Gago, as Trensurory had on hand & milifon whon he did not have it on hand, and that ho ind a balauce of moueys of that amount whon euch balance was not in Dis possession.. According to this indictment the 'ropsurer wes once & montli roquired to swear that tho moneys with which he was properly chargeable woro actually in his posscssion, and o 80 sworo notwithstanding hohad loancd thom, Bworn and subseribod 0 Decetuer, A, D, 1670, Fuanots M. Bannerr, Notary Publle, P Wao olaim that Mr. Gage was not required by any Ngtl‘guxn,“flll.“ f Iaw to swear that the money with which ho THE INDIOTMENT was ohargeable was at tho dale of tho roport in his possession, No olauso of the statuto ro- quirad such an affidavit, 1le was only raquired to stuto correctly the city balances, nud the only raquisite upon tho question of possssion waa to swoar that ho had uot parted with such pose possion unlawfully. The difforence botwoon actually having & thing in possession and not haviug'parted with it unlawfully is apparout. T'he one ho was reqnired, the othor hio was uot, Wo clnim alko that the exprossion * on hand aud balanco” are questions of accounting, aud go to the amounts with which Mr, Gago was ahargoable, aud not to the locus in guo of puch, in aa follows : The Grand Jurors, chosen, selected, and ~orn, in and for the County of Gouk, in the Slato ur Illuols, in tho namo and by the anthority of tho yeople of the stato of Lllinols, upon tholr onths presont that David A, Gago, late of tho County of Cook, on tho Oih dsy of Docomber, in the yoar of aur Lord 1873, iu anid Conti- ty of Gook, in the Btato of Tilinols aforemid, wsa tho “Treusurer of tho City of Ghicago, in eafd county ond Stato 3 and that he, tha sald Duvid A, Gage, s lch ‘freastiror, was then aud thiore roquired by lw, and it wes then and thoro bis duty, “Iressurer, (o render an account {o the Comptrolior of addd QlLy of Ohicogo, under owth, showing tho stato of