JUDGE SULLIVAN'S OPINION
HE STANDS OUT AGAINSTTHE
BALANCE OF THE COURT.
Judge Sullivan Holds That Whon
a BIr Publlo Official Steals Hols
a Thief and Should Do Punished
Accordingly.
"So. 0697 Eugeno Moore vs. State.
Opinion filed February 17, 1853. Sullivan,
3., dissenting.
I do not concur In the conclusion of
tbe majority and give here tho reasons
or my dissent. .
The constitution of J876 not only re
pealed that part of secetlon 32 of the
Insurance law which authorized the
auditor to appropriate to his own use
the fees therein specified but repealed,
as well, so much of tho section as au
thorized him to receive such fees for
any purpose. These fees were, by tho
provisions of tho constitution, required
o be paid Into the treasury of the state
tn advance- of the rendition of the service
which tho statue mndo It the auditor's
duty to perform. Tho money then It
must be conceded, was received without
authority of law. Being so received. Is
the defendant guilty of embezzlement
under section 121 of tho Criminal Code,
7y reason of having converted It to his
own use?
Unsolved Into Its elements, tho propo
sition is this: (1) Did this money be
long to the Btnte7 and (2) docs the de
fendant fall within the clnss of persons
against whom the penalties of the sec
tion are denounced? It Is settled by a
Song list of decisions In other states that
-taxes or other publlo revenues collected
y an officer noting under color of an
-unconstitutional law or void ordlnnnce,
"belong not to himself but to the munici
pal or political corporation whose com
mission he bears. Chandler vs. tho State,
1 Lea (Tcnn.), 230: Village of Olcan vs.
King, 1G6 N, Y.. 355; 8wan vs. the Stnte,
48 Tex., 120; Morris vs. the Stute, 47 Tex..
83; Waters vs. the State. 1 Gill. (Md.)t
302: Commonwealth vs. City of Phila
delphia, 27 Pa., St. 497; Mlddleton vs.
State. 120, Ind., 1C6; Mayor vs. Harri
son, 30 N. J., 73.
Here the defendant, acting under the
color of a statute, ortglnnlly valid but
repealed In part by Implication on the
-adoption of the present constitution, col
lected fees due the state for official ser
vices rendered by him ns auditor of
public accounts. And now, after hav
ing rendered services to the Insurance
companies as the agent of the state and
after having assumed to act for the
state In collecting the fees due for such
services, he cannot be heard to dony
that the fees so collected and received
"belong to, and are the property of, the
state, Tho application of the doctrine
c-C estoppel to tho facts In this case has
mado the money In question the money
of the state; and It must bo so regarded
ieather Its title be drawn In question
In a civil or In a criminal case. The
law does not require us to hold today
In a criminal action that it Is not the
-state's money, nnd tomorrow In a civil
-action that It Is. In the oaso of State vs.
"Spauldlng, 24 Kans., 1, It wns held that
where a city officer, pursuant to a cus
tom of long- standing but without any
other color of right, collected fees due
to the city for services rendered by
him, such fees belonged to tho city, and
that by their appropriation to his own
use he was guilty of embezzlement.
"But was the defendant one of tho
-persons against whom section 124 of the
Criminal Code Is directed? Whatever
may be the rule In other Jurisdictions,
the question Is no longer nn open one
In this state; It has been effectually set
at rest by the decision In the cose of
State vs. Lledkte, 12 Neb., 171. The
language of the section, "any officer or
other person charged with the collection,
receipt, safe Keeping, transfer,, or dis
bursement of the public money," etc.,
Criminal Code, sec. 121.) Is, unques
tionably, descriptive of the persons who
may be punished under Its provisions
and Is, therefore, descriptive of the of
fense. It Is, of course, true that the
defendant was not charged by nny valid
law with the collection or receipt of tho
moneys here In question, but having col
lected and received them under color
of his office, It became his duty to safely
'keep them nnd transfer them to the
'treasury of the state. And this wns not,
as Intimated In the ense of San Louis
Obispo County vs. Farum, 41 Pnc. Rep.
(Cal.) 445, a duty due from him ns a
private citizen, but one arising out of,
nnd resulting front, his official stntlon.
Upon this point the Lledkte case Is di
rect authority; for, by this Judgment of
this court, a peremptory writ of mnn
damus wns awarded against Lledkte
to compel him to pny to tho state treas
urer fees collected by him as auditor
under tho provisions of section 32, afore
said. The writ could not have Issued
against him ns a mere private debtor of
tho state; It could have l3sucd only to
coerce the performance of nn official
duly. Thatcher vs. Adams County, 19
Neb., 4S5; Laflln vs. State, 49 Neb.. GIG.
I am not prepared to say that I should
agree to the rule established by the
Lledkte case, were tne question now pre
sented for the first time. But that de
cision has stood unchallenged for nearly
twenty years: It may be contrary to the
-weight of authority but It hns the sup
port of sound reason, and, to say the
least, It Is not so serious an Impediment
In the way of Justice as to call for a
Judicial repeal. The principle on which
It rests has the sanction of very eminent
authority. It Is precisely the same prin
ciple which controlled tho decision In
the case of State vs. Spauldlng, supra.
In that case the conviction was not sus
talned because Spauldlng was agent of
the city to collect license moneys. In
truth he was not, and could not have
been such agent; an exclusive agency
for that purpose was. by ordinance,
vested In the city treasurer. But, hav
ing by an assumption of authority ob
tained tbe money which he embezzled,
be was estopped from denying that such
assumption was false. From the opinion
written by Brewer, J., now of the su
preme court of the United States, I
juote as follows: "We do not affirm
that the city was concluded by the de
fendant's acts, nor Indeed that any
-one Is estopped but himself. But we
bold that when one assumes to act as
agent for another, he may not, when
challenged for those acts, deny his
agency: that he Is estopped not merely
as against his assumed principal but
also against the state; thnt one who Is
agent enough to receive money. Is ngent
enough to be punished for embezzling
It, An agency de facto, an actual even
though not a legal employment, is suffi
cient. The language of the statute Is,
"If any olllcer, ngent, clerk, or servant
of any corporation, or any person em
ployed In such capacity. He
the defendant) voluntarily assumed full
charge of this entire matter. Including
the receipt of money and the Issue of the
aicer.se. The money was paid to him be
. cause of his ottlce and to induce his oftl
etal action, and he may not now say
that it was not received 'by virtue of
W employment or office.' or that its
receipt was not one of the prescribed
legal duties" of such office. Ho
may not enter into the employment and
then deny Its terms or responsibilities.
He Is estopped from saying that this
money which he embezzled Is not the
money of the city."
It is not more true ns a Ifgal propo
sition that Spauldlng wns the agent of
the city, or, In the language of the
Kansas statute, "employed In such cap
acity" than It Is thnt the defendant In
this case was "charged with the collec
tion, receipt, safe keeping, transfer or
disbursement of public money." Never
theless, he wns convicted and the con
viction sustained because the law did
not permit him to assert the truth and
rely on It ns a defense. So It seems
to tne that the defendant, Moore, having
obtained the money In question for the
state by tho exertion of his official au
thority should be permitted to deny that
he held It In his official capacity. The
remarks of Mr. Bishop In his work m
Criminal Law are pertinent here Tho
author says: "In renson, whenever a
aiun claims to bo a servant while getting
Into his tmssesslon the property to be
embezzled, he should be held to be such
on his trial for the embezzlement. This
proposition Is not made without con
sidering what may be said against It.
And a nutuial objection to It la that
when a statute creates an offense which
by Its words can be committed only by
a 'servant ' un extension of Its penalties
to one who Is not but only claims to
In- such, violate the sound rule of sta
tutory Interpretation whereby tho
voiuh. taken ngulnst defendants, must
bo construed strictly. But why should
not the rule of estoppel, known through
out the entire civil department of our
Jurisprudence, apply equally In the
criminal? If It is applied here, then It
pettles the question; for by It when a
man has received a thing or another un
der the clnlin of agency, he cannot turn
around nnd tell the principal, asking
for the thing, 'Sir, I wns not your agent
In taking It, but a deceiver and a scoun
drel,' when, thereafter, the principal
calls the man under these circumstances
to account, he Is estopped to deny the
agency he professed why also If he Is
then Indicted far not accounting, should
he not be equally estopped on his trial
upon the Indictment." (2 Bishop, Crim
inal Law, Ch. 10, Sec. 364.) The rulo thus
stutod has been recognized and approved
In State vs. Spauldlng, supra; State- vs.
O'Brien, 94 Tenn., 79; nnd People vs.
Royce, 37 Pnc. Rep. (Cal.) C30. It bus
also received recent recognition from
this court. In the enso of Hartley vs.
State, 73 N. W. Rep. (Neb.) 744, tho
contention of the defendant that the
depository act Is unconstitutional Is
answered In the following language: "It
is urged that the court erred In assum
ing In the tenth, eleventh, and fifteenth
paragraphs of the charge the validity
of the depository law. An elaborate ar
gument Is made In tho briefs ngalnst
tho validity of that piece of legislation
on grounds other than those heretofore
considered by this court. We must be
excused from entering upon a discussion
of tho subject at this time, as the de
fendant Is In no position now to as
lert that the publlo moneys of the state
wero not rightfully on deposit In the
Omaha National bank, lie recognized
the validity of the statute by placing
the moneys of the state In said bank,
and It would Indeed bo a reproach upon
the law to permit him to ussall the de
pository law In a prosecution for tho
embezzlement of the public funds so de
posited by him. It was the money of the
state that went Into tho bank, and It
wns likewise the money of the state
that paid the check, whether the bank
was a lawful Btate depository or not."
From these citations It appears that
tho Lledkte case does not stand solitary
and alone. The principle on which It
was decided Is not a pernicious one, to
fay the least, and It should. In my Judg
ment, be adhered to. The defendant, by
his plea of guilty, has confessed that
ho received the money embezzled as au
ditor of public accounts, and I do not
think we should either directly or nec
essary Implication overturn one of our
own decisions In order to hold that
his confession Is false.
The State of Nebraska, ss.
1. D.- A. Campbell, Clerk of the Su
preme Court of Nebraska, do hereby
certify that I have compared the fore
going copy of a dlsstentlng opinion
by Hon. J. J. Sullivan, one of the Judges
of said Court, filed In my office on the
17th day of February, 1898 with the
original on file In my office and that
the Bnme Is a correct transcript thereof,
and of the whole of said original.
In testimony thereof. I hereunto set
my hand nnd caused to be affixed the
seal of said court at the city of Lincoln,
this 12th dny of March, A. D. 1898.
D. A. CAMPBELL.
Clerk.
BY THE WHOLESALE.
An Omahn Judge Declnros Many
Marriages lllogal
Omaha, Neb., March 21. Some time
ngo nn nrtlcle apeared In the
Kvenlng World-Herald containing seml
Judlclal statements of some of th
Judges, containing the legality of mar
riages performed within six months af
ter a divorce has been granted by u
Nebraska court.
Now, through a decision made by
Judge Fnwcett. the stamp of illegality
was placed on such marriages, and
some 200 couples In Omaha, who have
considered themselves as lawfully
wedded, will learn that however honor
able their Intentions may be and have:
been, they are violating the statute law
of Nebraska and are living in a statu oi
Illicit relations.
The case decided was that of Rohlf
lng, and was of such nature as to
bring the law squarely before the court
for the Urst time. In such a manner
that a positive decision could be made.
Ernest Rohlflng was divorced from
his wife April 11, 1891, and May 14, fol
lowing, went to Council Bluffs and
wedded his second wife.
They lived together for a number ot
years, when some one informpii Mm
Rohlflng that her marriage was Illegal.
Obtaining legal advice, she found rea
son to believe the statement was true,
and separated at once from her hus
band. To settle tho question, so that they
could lawfully live together, Rohlflng
brought suit against his wlfo to have
the marriage affirmed.
Yesterday, Judge Fawcett, aftei
hearing the case and examining th
law closely, anuounced that he Is unabla
to affirm the marriage; that It was Ille
gal when consummated; and ho refused
to grant the decree which would mak
the marriage legal.
Tho question as to whether or not a
common law marriage was established
by reason of the parties' cohabitation,
was not passed upon, so that It yet re
mains an open question whether elthex
enn marry some other person, as though
they were divorced, or whether, if theii
desires are to be separated, a suit would
have to be commenced, to annul the
common law marriage.
As the petition did not set up, that
the marriage was a common law mar
riage, the court could not declare it
such, and other Interesting questions
are thereby raised.
It has boen a common practice for
couples, within a few days aftsr being
divorced in Nebraska, to go into soint
other state to get married, thinking
they have compiled with the law but
the decision of Judge Fawcett settles
the Illegality of all such marriages oc
curring within six months after the
decree.
ANOTHER PROMISE BROKEN
REPUBLICANS DEFEAT
FREE HOME BILL.
THE
A Party Vote Showing That Tho
Pledges Made In, the St. LouIb
Platform Means Nothing Con
gressman Oroono Ably Dofonds.
Bureau Neb. Reform Press.
Washington, D. C,
The free homes bill which wus at
tached to the Indian appropriations bill
as a rider, by Senator Allen, was de
feated the other day by the republicans
In the house. As the reader will recall,
this bill passed the senate during the
special Besslon and wns hung up In the
house committee on public lands until
the presert session. Then, by hard
work Stark, Maxwell, Sutherland and
Greene of the Nebraska delegation, as
sisted by other western friends of the
bill, forced that committee to report
the bill to the house and since that
time It has been "on the speaker's ta
ble," and there Czar Reed and Chulrman
Lnccy of Iowa Intended it to He until
Gabriel blew his horn. But Senator Al
len moved an amendment to the Indian
appropriation bill by attaching this bill
as a rider to that.
The republican leaders from Reed
down were bound to defeut It, so by a
vote of 99 to 120 the house voted to mm
concur In the Allen nmendment. This
is but nnothcr proof that the Insertion
of a plank In a republican platform
means nothing. .The St. Louis platform
pointed with prfde to the fact that the
republican party hud the honor of pass
ing the first homestead law, and they
declared the party pledged to free homes
to actual settlers. That plank was only
put In to catch votes, Just the same as
was the one pretending to favor bimet
allism. Tho following Is a portion of the
speech In favor of the amendment, by
Congressman Greene of the Sixth dis
trict: Mr. Greene Mr. Chairman, I am per
sonally familiar with some of the lands
affected by the bill under consideration.
The question which wo are to face to
day is whether or not homesteaders who
have gone out and taken up these lands
purchased them from the government
shall retain them, or whether they
shall be evicted and the Innds go Into
tho hands of others. That Is the simple
proposition In a nutshell. It has been
repeatedly asked on this floor, "Did not
this man buy the land and agreo to
pay for It?" Yes, they. did. But they
expected when they purchased It to pay
for It, But thy have found It utterly
Impossible to make that payment.
I will speak of the part of the land
with which I am familiar. I know how
the settlers there are situated. They
live from 30 to 60 miles away from a
railroad. Between their homes nnd the
railroad is a strip of sand dunes from
eight to ten miles wide. Two full days
are required for them to haul a load of
their grain from their homes to the rail
road and return. The road being so ex
tremely rough and In part so very bad,
but a small load can be taken. You can
Imagine, then, how soon a man living
on that land and drawing his grain that
distance to the railway can make pay
ment to the government.
Tho question Is, gentlemen, Do you
Intend by your votes today, for the Bake
of the small pittance the government Is
to receive from the sale of these lands,
to say to these men who have gone upon
them and plowed up the wild prairie nnd
made their farms and built their little
houses, prepared their humble homes
for their wives and children, thnt after
having done this they shnll be driven off
and their lands turned over to those
who may be able to pay the govern
ment the nmounts i?ue?
Mr. Samuel W. Smith Why not ex
tend the time and let these people pay
for their lands?
Mr. Greene An extension of time to
these men means simply that they are
to put more Improvements on the lands
and ultimately lose them, because they
will not be nble to pay for them under
existing conditions.
A Member If eviction follows.
Mr. Greene Eviction will follow If
the government demands payment nt
the hands of these, settlers. You may
extend the time, but eviction must ulti
mately come. An extension of time sim
ply means accumulating upon the land
the labor of these men and ultimately
the turning of the lands over to specu
lators. I want to appeal to every man pres
ent republican, populist or democrat
for this should not be a party question
you did declare In your platforms In
favor of this measure. You can not es
cape that proposition. You say. "Oh,
wo meant simply that we were In favor
of free homes under the old homestead
low." Sir, the old homestead law was
not In question. That law had been en
acted and was In full operntlon when
you wrote your platforms In 1S96. There
wns no question nffecting the public
lnnds or nffecting homesteads before
the people when you wrote your plat
forms except this measure. And you de
clared that you were in favor of It.
You told your constituents thnt you
were In favor of It. You democrats told
your constituents In your platform that
you were In favor of this measure, be
cause It was the only measure affecting
tho public lands that wns being agitated
before the people at tho time you wrote
your platform.
How can you reconcile a vote against
this measure with the promises made
to your constituents In the campaign
which resulted In your election? Sir. I
want to say once more upon this floor
that I believe that n declaration In a
platform Is a solemn pledge made to
the people, and that he who violates it
is a betrayer of the trust reposed In
him. How can you republicans ask the
people to again believe you sincere In
your pledges In the fac of open and
flagrant violations of past promises?
Gentlemen have argued that these
lands were bought by the government
from the Indians and must be paid for;
that If this bill passes, the government
will lose large sums of money. I grant
that to be true, but Is that a reason
why this bill should be defeated? Sir,
it has been the policy of this country
for more than a quarter of a century to
give freey homes to all our people, to
the extent of our public domnln, as an
Inducement to people the great plains of
America. Had all these lands now com
prising the great states of Kansas, Io
wa, Nebraska, North and South Dakota
and other states carved out of the pub
He domain been sold, It would have
brought hundreds of millions of dollars
Into the nntlonal treasury, but It was
thought the wiser policy to buy these
lnnds and donate them to our homeless
people.
The policy hns proved to be even bet
ter than Its advocates hoped. Under It
what was called the Great American
Desert has become the granary of
America, Under this beneficent home
stead law the courageous men and wo
men of the east and middle states went
rorth as the pioneers of civilization.
They endured all the hardship and pri
vation Incident to frontier life, as well
as the dangers which surrounded them
on every slae; nnd, let me say, no ono
not familiar with such a life can form
an estlmato of what these suit-denials
were. Far away from former friends
and home they built first the sod'shnnty
on the plain; they subdued the virgin
oil; they built comfortable homes, good
school houses, and splendid temples for
Christian worship; their Industry has
checkered the land with railways; aplen
did cities have taken the places of In
dlnn villages, and everywhere largo
towns testify both to tho wisdom of the
homestead law and the thrift nnd en
terprise of our people. Sir. while wo
have lost millions of dollars In the first
instance by giving these lands to our
homeless people, as a nation we are
thrice compensated In the great wealth
added to us as a nation In the develop
ment of these great commonwealths.
In these states made by our pioneer
hor estenders we .can grow more than
enough grain to feed the nation. In 1860
there were only 2,100 miles of railroad
west of the Mississippi and only 26V4
miles west of the Missouri river. In 1869
the railroad mileage west of the Mis
sissippi had reached 62.612 miles, and
In 1890 79,703. In 1879 the population
west of the Mississippi wns 6,493,167,
and In 1S90 15,170,215, nnd nn examina
tion of the last presidential vote will
show a population west of the Missis
sippi river of nbout 20.000,000.
Western states have 121 universities
and colleges, and nbout 62,000 schools,
with a school population of near $6,
000,000. Can any country on record show
a better record, all conditions consid
ered? And this, sir. wns made possible
by the homestead law. I beg our friends
of New Englnnd and the eastern states
to come out to our great Trnns-Missls-Blppl
exposition at Omaha and witness
there the mighty progress of a great
people, and you will agree with mo that
giving uway public land to homeless
people has been one of the greatest
blessings that ever came to us as a
nation.
Shall we abandon this beneficent
policy now? Sir, on the lands Involved
In this bill are living todny thousands
of families, representing many thousand
of our people.
They went upon these lands In good
faith, but drouth In some Instances has
overtaken them; hall has sometimes
destroyed their fields of grain, and
therefore they can not pay. Is It the
policy of the republican party or Its
leaders upon this floor to say to these
people, "You must leave the land which
by your energy has been made produc
tive and the home you have made hab
itable and turn It over to one more able
to pay?" Will you drive these men,
many of whom are veterans of the late
war, homeless Into the world ngaln that
others may reap the reward of their
labors?
Sir, as was ably said by a gentleman
on this floor, these people derive no
benefit from the protective tariff; no
appropriations made by this congress
affect them. Let us by our votes make
them feel and know that although they
live far out In a sod shanty on the
plain, still they are not forgotten by the
American congress.
CONGRESS TO DECIDE.
If .It Declares War the President
Will Give His Approval.
Washington, D. C, March 21. Secre
tary Long has announced to his col
leagues In the cabinet that as the re
sult of the Inquiries he has made, he
confidently expects the report of the
court of Inquiry on the Maine disaster
to reach Washington today.
If that report arrives early In the day
a special meeting of the cabinet will be
called to consldor It. Otherwise It will
be read by the president for submission
to the regular Tuesday session of the
cabinet, when it will be thoroughly dis
cussed nnd its disposition Aectded upon.
A member of the cabinet Is authority
for the statement that it Is the present
intention of the president to at once
transmit the report to congress, and un
less something should occur to change
this plan It will be sent to the senute
and house Tuesday afternoon. The pres
ident will not send nny lengthy mes
sages with It commenting upon Its con
tents, but will accompany It with mere
ly a note of transmittal. If congress
believes that the facts as ascertained
by the court qf Inquiry constitute suffi
cient ground for such action, a resolu
tion communicating a formal declara
tion of war against Spain will be at once
drafted by the committee on foreign
affairs in both houses. Such a resolu
tion requires only a majority vote for
its adoption and the president, It can be
stated on nuthorlty, Is ready to attach
his signature to It if the American peo
ple, through congress, think there is
Justification for war.
Whether ths findings of the court of
Inquiry, ns finally defined, will be so
conclusive as to warrant such action,
the president and his cabinet profess
not to know. It wns admitted, how
ever, by several of the cabinet officers
that there was a strong suspicion en
tertained by all of them that the report
would not only show that the Maine
and her brave crew were blown up
by an external explosion, but that It
would Indicate the complicity of Span
ish officers In the affair.
"If such should prove to be the case,"
said one member of the cabinet, "there
could, of course, be only one result of
laying such report before congress.
There could be no talk of arbitration.
It would be war. But if the report
shows that it was an external exnlo-
slon, and It does not definitely Implicate
Spain in Its cause, the question would
arise as to the responsibility of that
government and whether It had shown
due diligence In protecting the ship of
a fr.endly nation while within Its har
bor. The matter has been discussed In
cabinet meetings In all its phases, but
no line of policy has been decided upon
in mis contingency.
The cabinet, after hearing the report
of the secretary of the navy and the
secretary of war on work for the na
tional defense that has been accom
plished since last Tuesday's meeting,
took up the Cuban question.
On the highest authority it can be
denied that there was any talk about
the advisability of the United States
assisting Spain In the establishment of
an autonomous form of government In
Cuba. That. In the language of a cab
inet officer, is "an Impossible Idea. It
would mean Intervention, and the only
Intervention possible for us would be
armed intervention, which would mean
war."
Wlro Trust Formed.
Chicago, III., March 21. John Lam
bert of Jollet, president of the Consoli
dated Steel and Wire company, was
Friday afternoon elected president of
the new nail and wire combination.
The new company will start In active
buslnes son April 3, 1S9S. It will have
a producing capacity of from 700,000 to
500,000 tons of wire and rods, which will
go Into the vurlous products now made
by them, Including wire nails, barked
wire, woven wire fencing, plain, gal
vanized, bright, "market" and other
varieties of wire, together with sundry
other products.
The production mentioned Is about 75
per cent of the total production of the
United States. Tho component compa
nies have a foreign trade of about $3,
000,000 per annum at the present time.
STIRS THE MUDDY PUDDLE
LINCOLN'S "CORRUPT MAYOR
STILL IN POWER.
Testimony Showed That Pollcomon
and Firemen Paid the Mayor For
Tholr Jobs In bplto of the Evl
denoo Republicans Aoqult Him.
Lincoln, Neb., March 21. The trial
ot the Impenchment of the republican
mayor of the republican capital city
of Nebraska, before a city council com
posed with one exception of republi
can members, Is ended and the mayor
Is acquitted.
The vote showed eight for Impeach
ment and five against, ono member who
Ing been absent since the trial began.
The solitary democrat on the council
cast his vote for Impeachment, but
there was a lack of two votes to muke
the ten necessary to convict.
Prom the beginning of the trial the
members have lined up Just about that
way and the final vote showed that
the adherents of the mayor were stand
ing by him as they had in the com
mencement. This result leaves Mayor
Graham In possession of the office of
mayor In spite of what his adherents
have all along denominated an attempt
of another faction of the republican
party to get possession of the city
government nnd the control of the re
publican party In Lancaster county.
IN FACE OF TESTIMONY.
The testimony of a dozen or so of
witnesses for the prosecution was to
the effect that policemen, firemen and
other -employes of the city had paid
money to the mayor or to friends of
his for him for the purpose of getting
his Influence to secure their appoint
ment or retention In office. That he
and the other members of the excise
board had permitted the gambling
houses to run under police protection
nnd permitted saloons to keep open on
Sunday and at other times contrary
to law, and had permitted certain men
to carry on without molestation and
without payment of license fees, occu
pations that the law required should
pay license fees to the city treasury,
and that all of these things were dono
with the corrupt intent to profit there
from, and that he did profit therefrom
in money paid by those protected in
unlawful business. The testimony of
the defense was a denial of oil the
charges and a denial of the truth of
the testimony of the prosecution's wit
nesses. Graham, himself, and his chief of
police, Parker, went on the stand and
gave their testimony. The argument of
the attorneys for Graham was that the
council had no authority to Impeach,
and that the testimony of the prose
cution wns not sufficient to convict.
In a few minutes after the close of
the arguments the votes had been
taken on the separate charges, and
Graham acquitted on every one.
MAKES MATTERS WORSE.
The acquittal of Graham Is making
the fight between the Hambletonlans,
or silk stocking crowd, as their ene
mies call them, or "reformers," as they
call themselves, on one hand, and the
"common herd," or Grahamltes, on the
other, more and more bitter. Both re
publican factions go into the primaries
tomorrow with candidates, and no one
believes that the battle will be given up
by the side which Is defeated there.
Never In the history of the city has
the bitter feeling existed between the
two factions of the republican party
as has been engendered by this fight,
which had its Inception two years ago.
The republicans ot the city prac
tically control the party In the county,
and prospective candidates for con
gress and state offices are taking sides
with one or the other faction, as to him
seems the best policy and most likely
to Insure being with the majority when
the time comes to select candidates
and delegates to the state and district
conventions.
The anti-Grnham republicans are de
claring that they will push the Indict
ments against him to conviction, and
he and his attorneys and followers are
pulling strings with which their hands
are familiar to checkmate any of these
efforts of their enemies.
To the citizen who looks on In a hope
for better government for the city and
county after the republican factions
have each shown that the other Is
utterly unfit to be trusted, It Is a most
beautiful fight.
BARTLEY GETS A REHEARING
Supreme Court Sustains the Ap
plication of His Attorneys.
Lincoln, Neb., March 21. The su
preme court Thursday sustained the ap
plication of the attorneys of ex-State
Treasurer J. S. Bartley for a rehearing
in the case In which he was convicted
of embezzlement ot state money and
tentenced to the state penitentiary. The
order of the court will put the case on
the calendar in the regular order to
take Its course. It is supposed the
method of procedure will be the filing
of new briefs by th'e attorneys for the
state and for the defense, and oral ar
gument to the court of the points In
volved. No opinion Is filed by the court
In passing on applications for rehear
ing, the usual practice being to take
the paers filed by the attorney making
the application, and after considering
these the Judges note on the back of
the application "overruled" or "sus
tained," as tho case may be. It Is a
matter among the members of the court
in the consultation rooms. In the pres
ent case the simple notation, as In all
others of the kind, on the papers. Is
all that there Is to the record.
The supreme court also handed down
a number of opinions and announced
orders in others. The application for n
rehearing of B. D. Mills, the Lincoln
banker, who was convicted of having
borrowed money wrongfully tnken from
the county treasury of Harlan county
by the county treasurer, Whitney, was
overruled. Mills was sentenced to five
years In the penitentiary and the su
preme court affirmed the Judgment of
the lower court. The application for a
rehearing was his list chance for hav
ing the courts of the state Interfere with
his sentence.
The application of the bondsmen on
the official bond of Barrett Scott, as
county treasurer of Holt county, for a
rehearing of the case In which they
were held liable, was also overruled.
Two other criminal cases, In which the
prisoners asked the court to reconsider
Us Judgment against them, had tne
same order entered. These were the
cases of Carroll and Brown from York
county, both convicted of burglary.
The court adjourned to meet on the
first Tuesday In April.
Rt. Hon. Thomas Ball, lord chancellor
ot Ireland from 1S75 to 1SS0, died at
Dublin.
Quotation ot Spanish 4s on the Madrid
bourse was 76.55, against 75.30, tbe clos
ing price of the day before.
VESUV.US, DYNAMITE!.
All About One or Unole Sam's
Unique Fighters.
In the preparations thus far made by
by the Navy department In anticipation
of war, nothing has been said regard
ing the peculiar value of the cruiser Ve
suvius and her guns, and It does not ap
pear that anything has been done to
ward putting these guns In a state of
readiness.
Whatever may have been the opin
ions of naval officers regarding the use
of the Vesuvius and her guns, and not
withstanding that they have objected
to the use of the pneumatic guns In sea
fights, owing to their high angle fire,
there has never been nny difference of
opinion as to the great value of these
weapons In bombarding nnd In counter
mining. In the bombardment of Alexandria by
the English fleet years ago It was dem
onstrated that the effect of high pow
ered guns against forts and fortifica
tions of all kinds was far less destruc
tive than had beon anticipated. Foreign
naval officers who examined the forts
after the bombardment were aston
ished, nnd It was said that the forts
could have been put In a defensive con
dition In a very short time, and that
the English fleet would have suffered
severely had the forts and guns been
properly manned by expert gunners.
Captain Goodrich of the United States
navy made a careful examination of the
Alexandria defenses after the bom
bardment, und declared that mortar
fire would have been fnr more destruc
tive In reducing the forts and In driving
out the enemy.
High powered projectiles traveling In
a Hat trajectory may pass completely
over and far beyond a fort before strik
ing. Their mine effect is comparatively
small, and the damage is not wide
spread. But large charges of high ex
plosives landed inside a Tort would do
terrible execution. The guns of the Ve
suvius can fire three different shells.
The hundred pound charge of gun-cotton,
equivalent to about four hundred
pounds of powder, can be thrown two
and one-half miles; the two hundrod
pound churge, equivalent to eight hun
dred pounds of powder, can be thrown a
mile and a half, and the five hundred
pound charge, equal in power to two
thousand pounds ot powder, can be
thrown about a mile.
It has been repeatedly demonstrated
that the gun Is remarkably accurate
and effective If the range Is known. In
a bombardment the range can easily be
found, and In that case these shells
could be landed Inside a fort with per
fect ease. Four out of five of them
have. In practice, been landed within
a rectangle of fifty feet. The effect of
uch shells exploding Inside a fort can
be easily Imagined.
In countermining the gun has equally
Important uses. The shells may be
thrown Into a harbor nnd along a ship
canal, and being fitted with a delayed
action fuze, which allows the shell to
sink some distance before exploding,
the shock will tend to destroy the en
emy's mines and all the electrical con
nections used to fire them.
Naval officers have admitted that a
channel could be opened for a fleet In
this manner at a point defended by
mined which could not be removed or
put out of action In any other manner.
The guns of the Vesuvius use gun
cotton. I
, . , j
All to Save One Cent.
Many persons go to great trouble,
that often borders on the humorous, to
save a cent. This phase of human na
ture Is strongly emphasized at
the South Ferry entrance every 'after
noon at 5 o'clock, when, under provis
ion of law, the passenger toll Is reduced
from two cents to one cent, presumably
for the benefit of wage earners, but ac
tually for the benefit of all who enter
the gates between five and eight o'clock.
The visible sign of this reduction Is
the turning of a card In the ticket office
window, whlcn changes It from "Fare, 2
cent's" to "Fare, 1 cent." The turn of
this card Is watched with great interest
every night by hundreds of eyes that
belong to persons who want to save
the one cent, which, though an insignifi
cant amount, aggregates when saved
twice each working day, to $6.25 a year
enough for a cheap suit of clothing.
It Is not ulone to those whom the sav
ing of such an amount means much,
however, who take advantage of the
low rates, but all sorts and conditions
of persons put themselves out to get the
advantage of the 50 per cent reduction,
often not only at the cost of time and
convenience, but at an actual expense
nmountlng to many times the money
saved on their ferry ticket, nnd this Is
where the humor of the situation pre
sents itself.
Each day, In the late afternoon rush
at the ferry, are many persons who stop
at the ferry entrance and wait for the
mystic hour of five.
Among these dally waiters are men
In broadcloth and silk hats, women In
satins and seal skins, and many others
who possess all the outward signs of
prosperity, nnd yet they stand often
with bundles In their arms in the street
dodging teams and foot pasesngers
waiting from Ave to twenty-five min
utes to save a cent.
The nearest saloon receives receives
some substantial benefit from this de
sire to save, for daily passengers, who
are waiting for the enrd to turn, re
fresh themselves at Its bar, and chat
within Its comfortable precincts. The
daily saving of about $1.50 In ferry tick
ets gives the saloon four times that
amount for stimulants and comforts
furnished.
I have watched these gathering
crowds carefully, and It is quite ap
parent that less than half of their num
bers need look so carefully after a
cent. Yet they stand In the street while
boat after boat leaves on the two cent
fare. They come with a rush, but
when they see the one cent side of the
card has not been turned, they retreat
and impatiently wait. They stand like
restless turkeys, first on one foot and
then on the other, shifting bundles from
right to left and from left to right, do
ing the hardest work for a cent they
ever did In their lives. Then, when the
card Is turned and each one has won a
copper, away they go with a rush,
crowding the lobby, blockading the
ticket offices, overwhelming the "chop
pers," filling the waiting room, Jam
ming the slip entrances and jostling
ind crowding on to the boats. Such is
human nature.
A village pastor in Germany madn
complaint of 129 fathers In his neighbor
hood for permitting their children un
der 10 years ot age to dance at a testl-
val. and the parents were nneu i mark
each. Then It was discovered that the
children of the complaining pastor had
aanced nlso, and he had to wait: up and
pay his line, too.
Ardent Lover For ye, my bonnle las
sie, I wad lay me doun and dee.
Practical Maid Oh, you make me
woary with your Imitation Scotch dia
lect. What I want is a man who will
get up and hustle for me. Boston
All reports from Cannda Bhow the
iomlnlon to be more prosperous than
for many years.
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