Omaha Daily Bee Newspaper, June 11, 1893, Page 4

L e— — - GUILTY AS CHARGED Judge Maxwell's Dissenting Opinion in the Recent Impeachment Trial, HIGH GROUND TAKEN BY THE JUSTICE Official Conduct Must Bear Scrutiny and Be Free from Any Suspioion. IGNORANT NEGLECT NOT TO BE CONDONED | Men Who Administer Publio Affairs Are Re- sponsible for Their Conduet, ABOUT PECULATIONS OF SUBORDINATES Many Points Shown on Which the Accused Were Derelict—Poor Protection Oftered the Public by the Acquittal—I honesty Roundly Denounced. 1t 15 o well known fact that the osher day when the supreme court handed down the opinfons in the impeachment case, two of the members of tho beneh joined in the majority opinion which gave George H. Hastings, attorney general, John C. Allen, secretary of state and Augustus R, Humph- rey, commissioner, the threo state ofticials who constitute the Board of Public Lands and Buildings, their clearing papers, allow- fug them to return to their office nd tate the affairs of state, notwithstanding the fact that a joint convention of the legis lature had indicted them for willful miscon- duct in admwinistering the affairs of cell house and the hospital for the insane, In the majority opinion Judges Post and Norval attempted to condone the offense by accept- ing the plon of overwork and holding that tho evidenc led to estanlish the essen- tial facts charged in the articles, though they admitted that the grossest frauas had been perpetrated by contractors who were furnishing supplics to the state and whose bills and fraudulent bills the members of the board passed upon und allowed from time to time. Chief Justice Maxwell took an entirely different view of the case, and after review- ing the law and the evidence, in his usual and concise style, filed a dissenting opinion, holding that the three oficials were guilty as charged in the indictment returned by the legislaturc. The public having the greatest confidence an the ability of the learned chief justice, and knowing that scldom,1f cver, his de- cisions have been rev 1 by thesupreme court of the United States, have demanded that his opinion be publish in full. The next morning after the opinion was filed Tue Bee printed a carefully prepared synopsis, but that was not suflicient to satisfy the public demand. The following is a verbatim copy of the findings in the case as summed up by the chief justice, the senior member of the bench : Dissenting Opinion of Judge Maxwell, In 1801 one C. W. Mosher was receiving from the state 40 cents per day for the board, clothin re and attention or each convict in the penitentiary. He was also en- titled to their labor and the convicts wore hired out to various persons at the rate of about 40 cents per day foreach convict. In 1891 an appropriation was made “for building a new cell house by day's work, $40,000.” This, like all other appropriations, was for ¢80 much thereof as may be necessary.” That is, 2 sum total of £10.000 was appropri- ated with the condition that only so much thercot as was necessary should e drawn, This is & condition of all appropriations in this state. The warden scems to have pro- tested agunstthe employment of persous outside of the penitentiary to construct tho building,on the ground that it had a demoral- 1zing effect on the convicts, The result was that the respondents agreed that the build- ing in the main was to be constructed by con- vict labor. W. H. Dorgan was Mosher's superintendent at the penitentiary and had full authority to hire the convicts to any per- son who desired to employ them. Daniel Hopkins was the warden of the penitentiary from Ma) 1801, toabout March 1, 1892, How Dorgan Was Chosen. He recommended Dorgan to the respond- ents as a suitable person on behalf of the state Lo superintend the coustruction of the cell house. Dorgan testifies as to his rela- . tions to Mosher as follows: A.—Well, Llooked after the busincss con- nected with it—that is, all his interest at the prison. That would include all kinds of supplics, subletting the men, and looking after his busing in general, The order making the appropriation is as follows: The construction of the cell house for the penitentiary as provided for in the general appropriation bill wherein £40,- 000 has been apprrpriated for that purpose Dby the twenty-second legislature to be dono by day’s labor being under consideration; Hill moved that W. H. Dorgan be employad be the board as supcrintendent of construe- tion, with power 1o purchas for construction and employ laborers for build- ing, subjcet to_the approval of the board; secondea by Allen. Motion carried. *‘Allen moved that Dorgan be required to furnish bond for the faithtul perforniance of duty in the sum of 10,0005 secondea by Hill Carried. On motion of ‘Allen the salary of Dorgan as superintendent was fixed at §0 er month to begin from this day.” Mr, rgan gave bond with approved suroties in the sum of 310,000, He was not a builder and possessed no practical knowledge of Dbuilding or building material. The new cell house is the cast wing of the penitentiary and is subst ly similar in all respect the west wing of the main building, new wing is 220 feet in length oy forty-five feet in width and about thirty-eight feetin height. Being directly east of the main building no wall was necessary at the west end, and there was o wall aboiit twenty-two feet in height on the north and also on the east of the new wing, which it was intended 10 use as the north and east walls and raise the sume to the desired height, So at that time the only walls supposed to be necessary were the south wall and, in addition. to raise the north and east walls to the height of the other walls, and put a roof on the building with a ceiling proparatory to receiving the cells, it in Stone, This, however, will be disc; board seems to have given 1o tions 1 regard to the building to do as he pleased. Soon afte point- ment Dorgan enter L with 8. H. Atwood & Co. for stone for the build- ing, the prico being 5 cents per cubic foot for dimcnsion stone, plugged Lo size. This was defined by the witness as stone split from layers of the proper thickuess by drill- ing holes in the rock and driving wedges sherein. Auother quality of rock he paid Atwood & Co. 16 cents per 100 pounds, and still another 5 conts per 100 pounds, the rock 10 be delivered at Codar Creck, or at othe points not more distant from Lincoln, the reight 1o be paid by the state. Dorgan, a cording o his statement, made no inquiry of others us to the price of stone. A large part of the stone was, in fact, purchased by Atwood & Co. of J W. Zook of Nemaha county und delivered on board of the cars at Johnson, in that county, at from 3 ceats per 100 pounds for rubble 0 10 conts per cubic foot for dimension stone plugwed to size Zook testilies that Dorgan wiote to him about tho price of stone sowetime before he sold to Atwood & Co.; that ho bad lost the letter. Hesays: A.—He asked the price of stone delivered at Lancaster, g.»\\ hat did you tell him? .~I told him I sold stone delivered on board the cars at the swilch at 10 cents a foot, and if I delivered it on board the cars at Laucaster the freight would be added, and that is what the letter contained. Q—Do you remember about what time that was? Was it before or after the time you sold the stcne to Atwood ? A.—Asucarus 1 can remember that was d later, T'he ran no direc- but left him about & woek bofore Atwood came down there. He also testifies: A1 hive been in the stone business about ten years. Q -What has beon the uniform market value of this dimension stone, free on beard the cars at that point A.—Ten conts & foot and I sold some di- mention stone for even less money than that If T wot 10 conts T considered 1 was getting a | fair price He tostifies in effect that ho wrote to Dor gan to such effect before Atsvood & Co. had purcnased the store from him and that he enclosed the letter in an envelope duly mped and containing his business ca asking for a roturn of the letter if it was not od for 1 that it was never returned. A Loss of Memory, attempting to deny that he lotter does not deny absolutely receive it. On cross-examina- Dorgan wh received the t he did tion he testifies Q.—My memory is that I asked had recéived any lottors from J Nemals county, relative to stone point? A.~No, T don't think that T did You don't think that you received any letters! A.—No. Q.—You were subpenaed to bring them, but you don't think you received any? A1 have no such levters in my possession ani I don't think T ever had This is far short of an unequivocal ¢ Atwood & Co. nlso purchased a quantit, stone from Van Court and Keys in Nemaha county for the penitentinry ata slight ad vance over the price paid Zook. But supposs Dorgan's denial is uncquivocal, still the probabilities are that Zook sent the lotter to Dovan as he testifies. Dovgan was ansious to justify his purchase of stone and to shiold the respondents, Ho pleads ignorance of the price of stone as a Justification for pay- ing more than twice asmuch asit could have been purchased for. His ignorance on t point hias the appearance of being nssum and 1o 4 that he had received the lett would, in effect, be a confession that he did know the price. On the other hand ok is a disinterested witness of fair ap- ance. He was anxious to find a market s rock. Ho testifics fully and un- equivocally that he sent letter duly stamped to Dorgan at Laacaster, where Dorgan received his mail, offering to furnish stono at 10 cents per eubic foot for dimension reed Lo size, and nts per 100 pounds rubble, all free on board the cars at Johnson, Nemaha county: that this lotter had his return card on it and that it never was roturned. That this testimony is true the shadow of deubt and it, with other things, shows how utterly unreliable is Dorgan's testimony. you {f you from that nial Evidence of Dorgan's Unreliability, The purchases of stone from Atwood & 0. are us follows AUBURN STONE. per foot be pur foot Tt ut 35¢ por foot, .. 815,500 1. diniension, 3,16 35 0 8 1068 77 1,101 07 772 90 CEDAR CREEK STC ars, no weight or quality ... 955,900 1hs. rubble nt G2 ) 400 1. footing at Se 111 100 Ths. crnshid at W DS, coping at 160,00 SO0 Tha. dinension at 106 000 Ihs. rubble at Ke 100 Ihs. rubble at Se )0 dimension at 10¢ PUERtITACS il 200 Ihs. rubblo at He ) s, rubble at & 8,700 Ibs. rubble at Se [ 818,400 Ibs. rubble at Be..... $2,249 74 JONNSON STONE. 281,700 Ibs. dim. 2,817 t. at 1 oot 2y SIS B11,500 1hs, dim. 3,115 1t at 16¢ per oot ... 90,050 115, foo s : per $ 450 72 ceeriieaais . 598 B8 i, 69014 76w 166 por 158 48 54 40 1,038 #3, by Dorgan for i F40 Tt 0t 160 p 0,100 1Ds. dim. 6,491 ft. 100t S . t 16c per 201 04 Total expended stone ¥ 1 OF STONE PAID 1 & C0. Rough ashler 1,332 ft.at 16e porft. Dinenston 4,640 4-5 ft. at 85¢ per fu 92 PRI HOPKIN Total paid to Atwood for stone. Where the State Lost, The amount so paid to Atwood & Co. v about twice a8 great as the same quality kind of stone could have be ased in the open market and the state by lost while Dorzan was superintend- ent more than 3,00, and as Hopkins con- tinued to receive stone under the Dorgan contract the loss 1o the state excceded £1,000. On the 1st day of June, 1801, Mr. made what he calls an estimate for § follows ; estimate No, ——: < dono and material furnished dur- nonth of May, 1891, for cell house at lary. Cut stonc Coner 3, e0e0n Excavating.. . sevssien Materinl on hand nof used wen duo contractor... .| The above estimate was made by this 150 diy of June, 1501, and | horeby cortify that the amount of work done and mator furnished by actor ars true and ¢ rectly stited and set forth in the above o i- matd, und that the said estimate s made in the min and necording to the plans and speeltications mentioned in the contract with the said stato and said contrnetor. W, i, superintendent, Sizned in oy pr nd sworn to. before me this duy —— A D, 18 Approved by the Board of Public Lands and ling dorgan 100 a8 $1,000 750 50 4000 100 sident: weral Fund The state of Nebraska. To W. 1L Dorgan, Dr. For material usod in building new cell house, per estimate No. 1 hereto attached, #6100, X 1o, unt to penitentia Jons and approved Juno 1, of Public Lands and Lui o charscd 1o wppr y now el house. ALLEN AR Hvsenngy, Secretary. President. pproved and warrant drawn for He also at the sume time sub- & account, Lixcory, Neb., June 1,1801, n, superintendent, * ount With prison contract. 31 : e BARTIO0) lays team at ¥, 000 LU T8 00 o Tumber for stone shed. X 00 To carpentor work..... . 00 To 6 wheelbirrows at $1.50. 00 Mo nails and mason line, 95 To s dozen squit 00 Lo be dozen shovels, 00 00 ol 0 1801, lin priation by und for Mr. W. 1. Do Ina ) Lo cites stono, > oxCAVRLINg, Ay ) switehing and .unloading 14 car Received paymont,prison contraet.$1,036 95 A similur estimato for June, 1891, for $%,000 was made on the 8 day of July apd similar :count filed, which were approved and war- ant drawn. The third ostimate and account were filed October 5, 1501, for 25,000 ere approved and a warrant issued the Tho fourth estimate and aceount for § were filed and approved Decomber 7, 1501, and warrant drawn, The fifeh estimate sud account were filed Marveh 7, 1502, and a war- rant issued. It will be seen that he had thus drawn from the treasury upon these various estimates the sum of £32,100 without 80 fir a5 appear from the persons who had furnished the labor or wa- terial, or their assiguees. DLuties Neglootod, Section 19, article iv of the constitution provides: *“I'he commissioner of public lanas and buildings, the soer state, treg urer and attocnoy shall form hoard which shall have general supervision and control of all the buildings, grounds and lands of the state, the state prison, asylums, and all other institutions the Dt those for educational purposes; and shall perform such duties and be subject to such rules and rogulations us may b prescribed "f law.” Section 4, chapter Lxxxiii, article vii, Compiled Statutes, provides: **The said board shail have power under the restriction of this uct Lo direct the general management of all the said institutions and be respousible for the proper disbursement of the funds ap- propriate for their waintenance and sha uvm\\'lny power over the acts of the s 0f such wstitutions and shall ou the art of the state av regular meetings as hercinafier directed, audit all accounts of such ofticers, including the accounts ot the commissioner of public lands and buildings, except his salary.” section b, At the regular meeting of the board it shall be their duty to examine the accounts of the public oficers contem plated in this act and to deterwine whether the sume are entitled to be pail out of the woneys appropristed for the purpose of maintaining the institutions for which the; ave churged, sud if correct shall approve th | tioned have been filed with | hereby authorized | coming under the provisions of this W. Zook of | | the claim to the auditor by same, which approval shall be signed by the president and countersigned by the secretary under the date of such action; and, if the accounts be incorrect, exorbitant or not en titled to payment from such appropriation the same shall be disapproved and retur 1o the claimant, such board keeping a re of the same Section 6. “When the accounts above men- the board and been audited and approved by the auditor of public accounts is and _directed upon the presentation to him of such accounts so authenticated to issue his warrent on the treasurer against the proper fund or _appro- priation for the amount thorein stated to the claimant or his assignee. Any no accounts 't shall be entitled to payment until they have bec s0 approved by the said board." Section 6, chapter Ixxxiii, articlo iii, pro- vides: “*All persons having claims against the state shall exhibit the same with the evidence in support thereof to the suditor to be audited, settled and allowed within two years after such elaim shail accrue, and in all suits brought in behalf of the state no claim shall be allowed tho state as an off-sct. but such as has boen exhibited to the auditor and by him allowed or disallowed, except in cases whereitshall beproved to the satisfac- tion of the court that the defendant at the time of trial is in posscssion of vouchers which he could not produce to the auditor, or that he was preventod from exhibiting absence from tho state, sickness or unavoidable accident, pro- | vided the auditor 1n no case shall audit a claim or set-off which is not provided by law.” shall have them cction S requires all warrants, vouchers, ete, to be preserved in the ofice of the auditor. Section 2, article ix, of the same chapter, requires the auditor to keep an ac- count of all claims presented to him for an examination and adjustment, and provides for appeal by any party agerieved. All claims against the State are to bo vresented to him and must have his approval bafore a trant can be issued. This means the primary claims—those of persons who fur- nish the goods, labor, ete. Itis true in ex- penditures contracted by the Board of Pub- I Lands Buildings they must approve, that is, certify all vouchers for such expen- ditures beforc the auditor can be required to act upon them. This is precaution to prevent frauds by ro- quiring the board that contracted the debt to certify that the claim is correct. It docs not change the acter of the voucher, however, as that is to be for the orizinal claim. State vs Moore, 5+ N. W. R., 860, Where Dorgan Had a Pull, In the case at bar the respondents on mere estimates and without vouchers allowed Dorgan to draw monoy at his pleasure, The board itself could not draw money from the treasury excent upon proper vouch- ers, and it has no authority to authorize Dorgan to do so. Should the mode adopted in this ease become the rule. every precau- tion for the protection of taxpayers would be broken down, the constitution and statu st at naught and money unlawfully and in defiance of law taken from the treasury. The testimony of Hopkius shows that at the time he was appointed superintendent on March 1 Dorgan had built the south wall and one-third of the east wall and that wis substantially all that was done. Hop- kins testifies on cross-examination : Q.—Hcw far had this cell house progressed atthe time you took charge as superintend- eut? A.—The north wall of the cell house was completed and part of the east. Q.—Do you mean the north or south wall? A—I should say the sonth wall of the cell house. Q.—And a part of the east wall? A.—And a part of the east wall; yes, sir. Q—The north wall had not yet been torn down? we hadn’t commenced on that. said the south wall. Q.—Was the south wall clear up? Yes, sir. Q.—How far was the east wall? A.—Why, it was perhaps one-third, He also testified: “The grates were put in the all and the door was hung, also the large door,” This testimony does not scem to be de- nied. The experts called to place values upon the several walls of the build and the whole as it now stands di greatly, The five experts lea from Lincoln all place the values of the several pacts, including material, very much lower than the experts called from Omaha. Thus Mr. Buliock, a builder of Lincoln, placed the value of the south wall at 26,472, while Mr. Coots, a builder of Omaha, estimates the value complete, in round numbers, at £10,402. He also cstimated the east wall completé av $2,797.05, Here's Where the Money Was Made. Tt is difificult to reconcile the various esti- mates of the various experts; it would s there should not be so much diffel estimated values. Porhaps in arriving oximate value it would be well to take verage of tho estimates, which would 31.18 for the south wall complete. Coots estimates the value of the east wall, nplete, at §2, one-third of which I eforeall the work per- formed under Dorgan’s superintendency, had it been done by free labor, would have been worth but having been almost wholly performed by conviet lubor, the actual cost even at 31 per day for convicts has ex- coeded $5,000. It also appears that there were plaus and details prepared for which itis claimed 50 were paid. There was some stone on hand but the amount thercof does not elearly appear. It could not have been very large, however, because Hopkins, after he beeame superintendent, purchased stone of Atwood & Co., as_heretofore stated, to the amount of $1,837.35, At the time Dorgan ceased to be superintendent all the ne that was supposed to be necessary was sufticient to compicte the east wall and to raise the north wall to the same heighe as the south wall. But esti- mate the stoue on hand . value of the south wall at 210,000, th gate of the work, had it beon performed by citizen labor, would be £13,200, which would include everything, and for this Dorgan had ed #3100 and as there were no funds asury the amounts were drawing L7 per cont, but the work on the U walls was almost, wholly per- formed by convict labor. The testimony shows that convicts would perform from one-half to two-thirds as much labor per day s was performoed by citizens, So that the ctual cost of the wall, including superin- tendent, must have been vory much less than the above estim Unsiato t In Mareh or April, 15 appointed superinténd cap stone from the when iv was interest south and fter Hopkins was 'ut, he removed the top of the north wall, discovered that there were no binders in the wall and that the mortar possessed 1o adhesivencss, was worthless and that it would be unsate to build on it. ‘The respondents were thereupon consulted and found it necessary to consent to the tearing down of the wall and rebuilding the sume, and this was done under Hopkins' di- rection, Dorgan had nothing to do with this or putting on the roof and all evidence as to the cost and value of the north wall, roof, et ure not in issuc in this case, nor of the building as it now stands, as there is uo ch against Hopkins. Dorgan returned to Hopkins the sum of 6,231.15, Dorgan has recefved and rotained $25,765.85, The stato was charged 31 per day for the conviets, al- though other contractors paid but 40 cents. 1t was alleged that the state had the choice and that the men selected for the state were expericnced stone musons and therefore more valuable thun the average convict. This shown to bo true of eight or ten of those em- ployed, but not generally. M. D. Woleh, presidont of the Western Manufacturing company, testitiod that he cmployed or- diarily about one half of the convicts (.~ You have practically carte blanche as to the selection of the men A.—Yes, sir; I have. Q.—You have your pick of the men in the penitentiary ! A.—Well, that is to say, Idon’t take crip- ples or diseased wen if I can help it, nor short-time mon. Q.—You take long hoalthy fellows? Yes, inmy business, Iwant 1o pick o man that when he gets familiar with the work he will be worth “something; it takes K0we Lime o learn them, He also testifies that he pays 40 cents per day for each convict employed and furnishes thew tobacco, candles, chewing gum, ete., in addition. The wages paid by him appear o be the ordinary wa; and the proof fails to show that on any contract continued for a cousiderable time were greater wages vaid. There are charges that more days work were charged 10 the stato than were rendered. That some such were charged vhere is no doubt, but the extent of such charges canuot be dete mined, although the amount paid was cou: 'R0 ime men, good strong, siderable. Thero would seom to be 1o ros- son why the stato should be charged a groater rate than 40 gepts per day, and with a capable, h\ll\ll(r-‘ulj fsintorosted suporin- tendent of the work and proper offorts of the respondents no mora htbd havo b 1 for the convicts who worked for the Dorgan's Appoinument Unjustifiable. I'heappointment of Horgan, whosedunterests wore altogether with Mosher, was entirely unjustifiable. If the Hoard was busy, as it claims to have been, thére was all the more necessity for the appointment of & capable disinterested superintendent who could be relied upon to look after the business and in- terest of tho state, *No ordinarily prudent man would have appointed Dorgan to fill the position of superintandent nor placed in his hands tens of thousands of dollars; and it is not surprising that the state has suffered serious loss. It sccins that Hastings was sent when Dorgan was appointed; that he had selected a disinterested party natw Davey and had promised him the position. But after his return _he visitea the peniten tiary and claims to have found eve satisfaccory and right and concluded to re- tain Dorgan, i Noman can serve two masters and this caso has proved no exception to the rule. The Proof Fally Sustains Each Charge. That there were frauds in the fiour contracts there is no doubt, but the extent of such frauds it is difcult to determine. hus, in ary and February, 1802, the flour was weighed. it is claimed, and the only record vresorved were the stubs of the weigh checks, and they are lost. There is also proof t the drayman was in the habit of leaving a number of sacks of flour at a designated place on the way to the asylum. The charges under these heads are fully sustained Second. It appears that while Dorgan wa possessed of the money in question he at the request of the respondents paid to Hopkins $200 to enable him and Elder Howe to visit tho prison congress at Pittsburg, Pa. Soon afterwards the board received from him $500 of the money belonging to tho state to visit various points to enable them to choose the best cells, This was charged to the cell house fund. Theso appropriations are justi- fied upon the ground that the state would be benefited thereby, and that therefore it was a proper oxpenditure, Section 22, article iil., of the constitution, provides: “No allowance shpll be mude for the incidental expenses of any state ofticer, excopt the same be made by genoral appro- priation and upon an account specifying cach item. No monoy shall be drawn from the treasury except in pursuance of a specific appropriation made by law and on the pre- sentation of a warrant issued by the auditor thercon, and no money shall be diverted from any appropriation made ror any pur pose or taken from any fund whatever cither by joint or separate resolution. The auditor shall within sixty days after the adjourn- ment of each session of the legislature pre- eand publish a full statement of all moneys expended at such session, specifying the amount of each item and to whom and for what paid.” Acted Without Authority. This provision declares that **No money shall be drawn from the treasury, except in pursuance of a specific appropriation made by law and on the presentation of a warrant issucd by the auditor thereon.” The legis- lature makes appropriations, It is for it, composad as it is of the representatives of the people, to say what is for the interest of the state and requires the expenditure of money. Unless it grants the authority there isnone. If an ofticer ora number of them an tako §1 without an appropriation and be justified in doing so, he or they may take all that thereis in the treasury if in their view the state will be benefited thereby. Money taken without any appropriation is taken not only withoat 1aw, but in defiance of it, and if the principle is once establis! would lead to gross frauds and peculations. Suppose trustees having the care of property and receiving the rents and profits shoula desire to visit distant points to cnable them to administer the estate with wisdom and prudence and thereby benefit it, could they charge this expense upon the owner or beneficiaries without their cousent lawfully ed? No morocan they do so in this . The state, through its legislature, must give its assent to an expenditure, otherwise the party must pay it out of his own pocket. No voueher was filed with any officer showing the amount expended nor any attempt to comply with the law. In addition to this the cell house is not ready for the cells oven now, therefore there was no emergency. But under no view of the case can the expenditure be justified and the fact that in one or two previous instances such expenditures were made, which do not seem Lo have been known, but tends to show the lax methods that appear to have pre- vailed with the board wherever the expen- diture of money was concerned. It also ap- pears that the legislature made an appro- priation of 31,000 for the traveling expenses of the board, It1s true Mr. Allen testifies that $500 of this sum has been expended. He also testities that all the members had passes, so their railroad fare was nothing. So far as he stated, the visits to the various state institutions by the board the expendi- tures should not have exceeded $100, and probably did not. If the board desired to travel on ofticial business it would seem that this was the fund for that purpose. It ap- pears also that Dorgan used $234 to reset the boilers in the prison, a charge which properly belonged to Mosher, and should have boen paid by him, Fraud Plainly Discernibles In addition to the ordinary provisions in appropriation bills that of 1591 contained the following Section ‘IZach state officer and each bourd entitied to draw against the app printion provided for in this act shall keep an itemized account of all expenditures maude by them and report the same with vouchers to the finance committee of the next legislature, and no ofticer of state insti- tutions and no state officer shall incur any indebredne: ond the amount appropr atea in this bill, except to prevent disaster.” ‘Tho testimony shows that the respondents made 1o attempt to comply with these pro- The charges are fully sustained. Third. The testimony tends to show that gross frauds were committed in the delivery of coal at the Lincoln insane asytum, The respondents claim to have been ignorant of these frauds until about September, 1802, It appears that from the 1st day of October, 1860, to the 26th day of March, 1801, the Whitebreast Coal and Lime company fur- nished coal for the asylum and was allowed therefor tho sum of £11,551.95, To cover this claim an appropriation of $12,000, or so much thereof as might be necessary, was made, and the claim was certified to the auditor by the respondents, The coal was alleged to have been de- livered on the cars at the asylum switch, but the number and initials of the cars on which it was alleged the coal was delivered are not given in a single instance. Dr. Knapp tes fles in effect that he did not believe the amount of coal charged had been delivered. His bookkecper testified to substantislly the shine facts. Neither of them, however, communicated their sus- picion to the respondents. Kuapp afte wards approved the vouchers and they were approved by the respondents and tho war- rants issued. The fact that an appropria- tion had been made to pay for this coal was not an adjudication of the claim, as the legislature cannot adjudicate claims, State vs Babcock, 22 Nebrasks, #8. Tho very large amount of coal charged—suficient to have supplied all tho usylums in the state for the time chargod-—certainly should have put the respondents upon imquiry. The revorts for coal’ feom the other public institutions were before them and, unless frauaulent vouchers were sent in from them also, of which thera is no claim, a comparison should have shown the fraud. examination was mad however. A men s seen in a ~oucher for July, 1801, follows: Just a Specimon, Stato of Nobrasks, Hospital forthe Insane, to Whitebreast Coal and’Liwe company, debtor. G July 4 July 0 52,000 pon W pea 3,04 61000 4000 luwp 41007 lump. . 40,000 p B lump.. 2050 eanon July 2401 e July 25, TUL0) PR ers + July 28, 100 pos PP T T 0 T account is the above I hercby certify that the above for supplies actuaily furnished numed inatitation, (8ign here) WHITEBREAST CoAL & Live (0. JOuN T. DORGAN. amined aud adjusted, suditor public ac- connts—per _doputy—Approved-Secrotary of Fiavo-per deputy. D PP Stgn horo nlso.) Recotvod of T. 11, Nenton, auditor of publie Accounts, warrant — 5 WhITENREAST COAT & LM Co. Jons T. Doraan DUPLICATS Hospital for tho Insane, Lincoln, July 81, 180157 cortify that the within acconnt I8 jusg and correct and that it is & proper and neces sary expense and has not heen patd W, M. KxAre, Superintendent tamined and approved August 3, 1801 Yourd of Public Lands and fulldings account to bo charged to appropriatic fuol and lizhts b . o0 Au SeTOtary Lincoln, Neb ant issud by nd for " President for the In- “T3910.79 and Light 1o Tosptal voucher No on ficcount of fuol onl & Lime Co T, [1. BENTON, Auditor of Public Accounts Botts, Weaver & Co., seom to have adonted the Whitobroast style of vouchers in Novem- ber, 1801 The voucher for Decomber, 1891, is as follows: Genoral Fund Stato of Nobraska, Hospital for tho Insane. To Botts, Weaver & Co. To 434,500 tons pea M0 318,120 tons lump To 14,7850 tons canon.. $ 798 22 . 846 72 6 00 3 Approved January 4, 1892 Other vouchers in that form were ap- proved. How Frauds Woro Hidder Contracts for coal were made every throa months and the Whitcbreast Coal & Lime Co., and Betts, Weaver & Co,, seem to hav monopolized the business, bm October 1, 1800, to December 31, 1801, and the month of February 1802, the a mount of coal alleged to hiave been delivered to the asylum at Lin- coln was 17,651,907 pounds and the amount actually received, so far as the ovidence shows, was 7,680,610 pounds, leaving a short- age of 0,962,307 pounds, which cost $12,555.47. ‘The proof fails to show that the respondents in any manner profited by these frauds. The respondents introduced evidence tend- ing to show that last October they submitted the whole matter to the grand jury of Lan- caster county and thereby sought to bring the guilty parties to justice. It is but fair, however, to state that Governor Boyd re- quested them to lay the matter before the erand jury and it is evidont that the matter had acquired such publicity that it could not beavoided. On this trial they, in effect, deny the frauds, or that if such existed they had any notice thercof in any form and, the fore, are not cnargeable therewith, They seem also to exhibit ne very fricndly sontiments toward the witnesses by whom the frauds were proved, and certainly showed no disposition to aid in procuring proof of the same, Some reliance is placed on the approval of the asylum officers by the governor in his message of January, 1891, This. no doubt, is entitled to considerable weight, but it could not in any manner excuse the respondents from tho exercise of reasonable care in examination of asylum vouchers. In ad- dition to this tho land commissioner in December, 1890, in his report to the gov nor, which is in cvidence, says; (b, S0) “Under the existing system of furhishing supplics the approvriation funds ave too frequently used in keeping with that cou- ception of charity which declares that it ‘hideth a multitude of sins.' Items for luxuries, privileges and conveniénces that alone enjoyed by the ofticials and their nds are too often clonked in a claim ‘for board and clothing, fuel and lights,” or some oneof the other necessary funds appropriated for maintenance of the institution.” Overworked Oficialst It is contended by the respondents that the business 1n their respective oftic increased thav it is impossible to givo atten- tion to many of the details of business that come before them and that they ave, ther fore, excusabls It is true there is a large amount of husiness in ch of the offices named. This isalarge and growing state and business in all departments is constantly increasing. In the office of the land com- missioner, however, there are ten clerks and one deputy, which, with the principal,makes twelve porsons. in the oftice of the tary of state one deputy and two clerk persons in all. In the attorney gea oftice, one deputy and a stenograph these officers need additional assistance, if they will prosent their claim to the leg ture, through the goveraor, no doubt the de- sired inc would e granted. These facts must be known to the respond ents, and as no such application was made it must be because it was not considered neces- sary. The business of the state, however, must e conducted in a reasonably prudent and careful manuer, otherwise the result would bo chaos. Suppose a merchant or business man should urge the want of time to look afeer his business and, therefore, lects ity the result would not be uncer- tain. No defense of this kind can be enter- tained. Fifth. Are these acts grounds for im- peachment? Section 5, article v of the con- stitution provides: +All civil ofticers of this state shall be linble to impeachment for any misdemeanor in oftice.” it may be well to t what are the duties of public ofticers? Kach one before entering upon his duties is required to take anoath that he will “faithfully and impartially perform the best of his ability. exerciseovdinary an ordinarily prudent man would excreise in the manage- ment of his own affair ¢ is bound to Grounds for Impoachment, The respondents are, to quite trustees. They let contracts aims each r 1o the amount of nea 000,000 Now shall this work be pe formed faithfully to the bestof the ability of each, as he has sworn to do, or shall it be neglected and no examination made? There is considerable conflict in the authorit 10 what constitutes an impeschable offens Under the common law the grounds of im- peachment are “nigh crimes and misde- meanors.” In anumber of cases under this law it has been held that the cause of ac- cusation must bea crime punishable under the criminal law, In Bngland impeachment has been to some extent considered a mode of trial to punish crime—althougn a ment of guilty was no bar to an indict and conviction for the same offcn; this country, while soms of the cases hold that to constitute an impeachable offense it must be such as could be punished the criminal law, yet,in the majority of cases, it is held that this requirement is un- necessary, and we are constrained to adopt the latter view. Judge Lawreace in 6 Am. Law Reg. ) in discussing the meaning of the word, says: “The word misdemeanor has a common law, a parliamentary and a popular sense. In i parliamentary sense, as applied to officers, it means maladministration or misconduet not necessarily ind " “Demeanor is con- duct,” and mi nor is misconduct in the business It must be in matters of imports of a character to show o willful disregard of duty. Now, do the acts above recited constitute misconduct in ofice? We are not without authority in this state on that point, Thus in Minkl vs Stute, 14 Nebraska, 181, a county surveyor who acted on the honesy be- hef that he had a right to remove so corners crected by the government Lo form to the field notes was found guilt maladministration of his ofice and romoved In State vs Oleson, 15 Nebraska lator was removed from the oftic for oficial misdemeanors and th firmed. It is true the pri an extent, and certify Lent pal ques ion of the o try cause, but offense was also Lo In State vs Meeker, county commissioners the character of the some extent involved, 19 Nebraska, 444, the respoudent was ro moved from ' oftice by the county board of Saline county for certain alieged violations of the law and while an appeal was pending in this court compelled him to deliver over the books of the oftice to the person ap. poiuted in his stead. In these cases there was no hesitancy on the part of this court to hold that these judgments of removal were valid. Among the grounas mentioned in the statute for re moval from office are habitual or willful neg- lect of duty. Compiled statutes, chaptc xviii, article ii, section 1. An examination of the constitutional provisions of & numbe of the western states will show that misde- meanor is cause for impeachment. Thus, State Laws on the Subject Section 1, article vii, of the Wisconsin constitution provides for impeaching *all civil ofticers of this state for upt con duct iu ofice or for eriminal misdeweanors.” Sectiou 6, article vi, of the constitution of Indiana declares that “All state ofticers shail for crime, incapacity or negligence be liable 1o be removed from ofiice eithe? by linpeach went * * or by a joint resolution of the general assembly." ; Section 80 of the constitution of I linois provides that “Tho genoral assenbly may or cause entered on the JUFRALS upon duo ( notice and opportunity for deienso remove Any Judgo upon concurrence of throe-fourths of all the members of cach house, Al other officors in this artiele menti shall bo removed from office on proseeqtion and tinal convietion for misdomanor in oftice Section 107 of the constitution of North Dakota provides for impeachment for “mis eonduct, malfoasance, crime or misdomen or habitual arunkonness or gross incom petency Section 4. articlo xvi, of the constitution of South 1 cota 18 the same Seotion 98, articlo ii, of the constitution Kansas ‘provides for impoachment for any misdemeanor in ofeo.” Section 20, articlo il of tho constitution of fowa provides for “impeachment for any misdenicanor or malfeasance in office.” ho constitution of Colorado specitics “high erimes and misdemcanors or ‘ufalfeas: ance in office. Section 47 Other states provide for substantially the same causes. The provision in tho constitn tion in this state is broader than that of any of the states named excopt Kansas. Und our constitution any gross misconduct is causs for impeachment. 1t would bo a vio lation of the oath of ofice and of the oficers’ duty. In that respect our constitution is much broudor than the common law torm, ““high crimes and misdemeanors.” But ovon at common law the offense need not neces: sarily bo a erime punishable by the criminal aw. of coedents In Plonty. Alexander Hamilton in No. 65 of the Fed- eralist says: “Tho subjects of its jurisdic- tion are those offenses which proceed from the misconduct of public men, or in other words from tne abuse or public trust. They are of a nature which may. with peculiar propriety, be denominated political, as they refate chiofly to ijurics done immediately to the society itself.” Hamilton's views are generally adopted in this country. In the early part of the pres- ent century impeachment was mode ot removing objoctionablo officers. Thus 1n Massachusette and some other states county oficers and oven justices of the peace were impeached. In many ifnot all of the stites at the present time the statutes pro- vide fora simplo direct proceeding in an action in the naturo of impeachment againsy certain oficers who are guilty of misconduct in oftice; and impeachment is but one of the remedies for that purpose, and in this state us applied to a state oMcer is the solo rem- edy. The causes however which would cause the removal of a county officer on the grouud of misconduct in offlco would seem to be suf- ficient against a state oficer. The claim that there was no willful disvegard of law in the penitentiary cell house is cloarly shown to be unfounded. The respondents’ duty to the state was in the first instance to appoine a capable, efficient supevintendent, who would protect the rights of the state; sec- ond, see that the state received as fair sreatment as other contr s in the e plovment of couvicts hase of mu terials, and to exercise a gencral supervisior over the work, and third, o permit no money to be drawn oxcept on original vouchiers of the persons primarily entitled to the money, or their assiznces. In all these respects there was a failure to dis charge their dut) The claim that they knew nothing pgainst Dorgan is entitled to no weight whatever. They did know that he represented the party who could and probably would profit by his being superin- tendent. Indeod, the avgument that they were able to hire him cheaver than a disin- terested party, is an admission of his unfit- ness it shows that he was drawing full pay for his serviees from Mosher at the same time. In addition to these facts, cach allow- ance of an estimate without a voucher was a violution of & duty by the respondents by which they wrongfully and willfully per- mitted Dorgan to draw money from the treasury. Cannot Plead Ignoranee of tho Law. Some attempt was a defense to some or all of these cha 3 But the authorities arc uniform that usage cannot be proved to afirm or contradict the expressed terms of a contrace where it would result in violating some positive requiremeat of statute. Rogers' Ixport restimony. sceond edition, 271-272 and cases cited. Itis very clear that proof of usage cannot bo con- sidcred, otherwise we might bo asked to iction the usage at asylum of the switch, Considerable stress is laid upon the rood faith of the respondents in committing these acts. This question was before this court Cobby vs Burks, 11 Nebraska, 161162, in an action for taking illegal fees. Itis said: I'he penalty incurred by this act mav be incurred by exacting fees which are sup- posed at the time to be lezally demandable By the very words of the prohibitory eluuse the taking is the gist of the offense. lgnor ance of the law will not excuse in any case; and vhis principle is applicable and with ir- resistible force to the case of an oflicer se- Jected for his capacity and in whom ignor- ance is unpardonable. The very acceptance of the oftice carries with it an asscrtion of 4 suflicient share of intellizence to enable the party to fellow a guide, provided for him with an unusual attention, clearness and precision. - On any other principle a convie tion would seldom take place, even in caus of the most flagrant abuse; for pretexts would never be wanting.” It may be sad that the people, having elected these men, their will should be respected and the, should not be ousted for the offens charged. In every vote I have given in this court I have favored carrying out as far as possible ths will of the people as expressed through the ballot box, but the same con- stitution which provides for the clection of ofticers and fora discharge of the duties of the ofticers, also provides for declaring the oftice vacant in ease of serious, willful, mis conduct. In other words, where the ofticer fails to faithfully perform the trust comumit ted to his hands, The doetrine has been ap plied in cquity from time immemorial, Thus, if a trusteo mishehaves m any way to the detriment of the estate he may he removed 12x parte Reynolds, 5 \ So, it ho re fuse or neglect 10 ¢ trust it is cuuse for removal, Misconduct 1n Ofle Inre Mech. Bank 2 Barb, ster vs Clendi 2. Perey on trusts No. 419 and cas I'his rule has been plicd by this court against inferior oflicers in o number of instanc ‘Thus in Brock vs Hopkins, 5 Nebraska, 2381, 16 w held that a clovic of the district court was liable for dam- s ovcasioned by his negligently and care- Icssly takine insullcient security. While if ho exereised a ressonable degroe of care in the performance of his duty ho was not lia- ble. In Fox vs Meachim, 6 thraska, Hil, it was held that where @ justice of the p violates the law and abuses his authority to the injury and damagoe of anothor, he and his surctics aro liable on his bond for such damages. 1 know of no roason why tho sumo rule, which would hold a county oficer liaolo for damagoes or guilty of an offenso for which he might be removed, should not bo applied to the stato oficers. The charge in both cases is substantially the same, viz misconduct in ofico If a county ofticer 1s guilty no one will urge as u reason for ndoning the offense that the accused was elected to the oftice dnd that the people would bo deprived of his by his removal; and I know of no hy the satne rule should not be applied whe the oficer is elected by the state, It is said the respond dicially in approving ac fore, are not liable for their acts. The able attorneys for the respondents made no claim of this kind, and therefore it is evident they did not rely upon it. Without Judiclnl Power, the ordinary pade to prove usage as 5., 107 cute the De Puy- If, in approving accounts, they act judi violation of some | clally, in order to protect them theré aro | vee things which must coneur, 1irst, the | sim must bo one they are authorized to | audit: second, 1t must be presentod in the form of a bill or voucher showing the del and what it is for, otherwise the board would bo Iiko & Judgge passing upon & mattor not bo- foro him, such as & mattor not’ put in lssue and, third, tho statute makes it their duty to investigato overy claim. The protection accorded to a judge against o private action does not apply when he is on teial under spe- cific charges of impoachment. Even a judgo of this court could not plead protection against such charces. Insuch case his co duct and genoral manner of conducting his business nay bo inquired into wnd if ho is found guilty of misconduct on any of the charges ho may bo declared guilty,” But no judicial oficer ' is protectod when ho oxeceds his anthority, and theso rospondents very clearly, in all that they aro charged with, acted either without authority of law or in excess of such authority. But in my view thefr duties aro not judicial. Tn the proper sense, they do not allow accounts oy meroly investigate or should investigate the votchers and tho several items theroof to seo that they conform to tho contract. In other words, the duty of the board 18 to let contrasts in a special manner, and when vouehers ace presented under such contracts which, upon examination are found to be correct, they are to cortify the same to tho auditor, The cortificate is not a final order from which an appeal would 1o and is not & judicial act. Lt will not bo seriously cons tended that an oficer who nogligently and improperly certifies a fraudulent account which it was his duty to investigate, or who urilaw fully draws money from the treasury, is protected from the consequences of his acts, and so far as 1 am aware, o case so hold: T'he rule announced in the case, it seems ne, would have protected I'weed from prosecution. Yot we know that ho was i convicted of obtaining money from ty of Now York upon fictitious claims allowed against the city by the proper authoriti and that = suit was also brought in behalf of the people to recover the money so obtained. In People vs weed, N. Y., 190, the petition alleges that T'weed was president of the Board of Super- visors of the county of Now York and *“‘pro- cured various pretonded elaims to be made up, purporting to be liabilities and amount- ing 1n the aggregate to $6,195,057.8 specitied in u schedule annexed, which was presented and by the procurement of the conspirators was cortificd to by tho three auditors named,” and it was held that the action could be maintained. Oficial Impradence. Proof was introduced on behalf of the re- spondents to show that Dorgan, Knapp and others had given bonds to the state. 1t is cevident that nono of these bonds will cover the actual loss to the state, and even if on- forced would be an inadequate remedy. But the eiving of the bond by the ohicer doos not exempt him from the porformance of his' duty nor relieve thoso who superintend his S from a faithful supervision of the same, The law imposes the duty of supervision “with a reasonable degree of care.” The duty of an ofticer is stated by Judge Lake in Brock vs Hopkins, supra, that ho exercised a reasonable degreo of care in the perforni ance of his duty. 1t scems tomoe the re- spondents wholly failed in the performanco of their duties m the ca: specifiod in theso charges, whereby the state, during the ten months that Dorgan was superintendent, lost a large sum of money, probably not less than 15,000, and $24 for resetting the boilers, which was nota aebt of the state, togother with the sums drawn by Hop- kins and Howe to go to Pittsburg and these respondents to go to St. Louis, in all §034. The overpayments for coal, allin six teen months, excoed $12,000. An ordinarily pradent man would have required the vouchers to be in- proper form, giving the numbers and weights of the several There are telephones in all of the public buildings, so that it would have taken but a moment to make the proper inquiries in re- gard to the conl andprotect the interests of the state, but so faras the proof shows such mquiries were not made in a singlo in- stance. A pubtic officer, like any other scryant, should be faithful to his embloyer to see that in all matters umder his conwrol the 1 shall nov_be defrauded. Tn other w shall bo nful to his trust, not as an servant, but in the sight of God. That is elfect, the oath that cach ofiicer takes to faithfully perform his dut; Would e u Premium on Dishonesty. Our public institutions should bo conducted on business principles and without fear, favor or favoritism, and no money should be drawn from the treasury except in strict pursuance of k. 1f the court should ap- prove or even condone the conduct of the respondents in these cises, the influenco of the decision will be loft ia overy department of business in the state as tending to weaken the sense of fathfulness ot public ofticers and employes, and in every way prove dotrd mental to the best interests of soviety. There s an abundance of men in the stato who ¢ \d af the opportunity is given by their scleetion to the ofices filled by tho respondents, will, faithfutly look after the interests of the s tho respond ents havo failed in that rogard the charges are well taken and should be sustained, I therefore vote guilty as charged. Will Open the Door to Frand. 1 fear the result of the decision, if adhored to, will ba to open a door to the grossest frauds in the public institutions of the state, A number of witnesses for the state testifiod as if under constraint and there scemed to be powerful influcnces aflecting some of them aside from the immediate friends of the espondents at work in their favor. The respondents, of course, arc not responsiblo for' these influences, but it is my duty to mention them. SEEaTs e, ELECTRICIL ore 1 for the o Bath, Mo.; Tho road Contracts hare veen sign struction of an electric road at and work will commence at onee, is to be in operation by Auzust fison exhibits his Jumbo clectrie engine in the world, at the Chicago ex 1ls0 exhibited at the sition_in I1ssand eaused gy onge F'rench electricians. It can » 600 revolutions a minute, The question of priority in electrie light invention has again been raised, and it is said thav (3dison 18 in danger of losing his laurel While Jadison is alive it will bo diftieult 1o displace him from his present position in_ the minds and hearts of tho peo- ple. After he is dead, iconoclasts of the Lypo t would overthrow Columbus and Shake- may seck to find 4 man to take the Sdison. Just now the electrical stands almost at the head of Ameri- ius, and he has the right to stand largoest osition. J Paris ex) surpr can g there. A now use has been found for electricity, Liko the innumerable other purposes to which it has been put, its now application is said to be an nmense improvement on tho old method of accomplishing the end in View. By its adoption brick kilns are to bo abolished and the clay transformed —into bricks by the transmission through the molds of & very strong current of electrieity, doubt is entertained regarding the effectiveness of the plan. It has been sub. jeeted to the test of practical experiment, and its success proved beyond dispute. B E \ of Golden, Colo., nine ye work und constant jewels | study, has invented a clock which has clec- tricity for its motive power. 1t is the only actual electric clovk that has ever been pros duced with electriciy for a wotive power, This clock in question has neither woight nor spring, but consists ouly of three wheels, i two electric magnots and o it ¢ other elock the motive power s not transmitted to the train but to Vo pendulum and only enough power is re- quired to overcome the lost motion of the pendulum.§ RAYMOND, TUE JE THOUGHTS OF MARRIAGE Of your best fricind wil have selected a handsome we VELE® I be far more pleasant if you dding present, If you choose from our collection you will gratify your taste at a mod- e rate cos.t RAYMOND, FIFTEENTH AND DOUGLAS, OMAHA