OMAHA DAILY \
ESTABLISHED JUKE 10 , 1871 ; OMAHA , SATUHDAY , JAUAHY 8 , 1808 TWELVE PAG ES. FIVE
PRISON DOORS YAWN
jells Heeded for Two More Inmates at tlio
„ State Penitentiary ,
tZRA WHITNEY SENTENCED TO DO TIME
Supreme Court Gets After Another Default
ing Ex-TrcasuKr ,
BENJAMIN D. MILLS GOES WITH 111 !
Decision Not Made Public Till tlio Men
Wen in Custody ,
RULING OF THE LOWER COURT SUSTAINED
Olim Win * IlnrrouN iMonc > ' of nil Olll-
clill , KuouliiK It to lie i'lilille
Kl.ncl * . IM \lo CllIK } nt
KiiiltcrrloiiK-nt ,
LINCOIJN , Jan. 7. ( Special Telegram. )
' flio supreme court Jias affirmed tlio Judg
ment and sentence of the lower court In the
case of Dzra Whitney , defaulting ex-treasurer
of Harlan court ) ' , and Dcnjimlri I ) Mills , who
ji.irtlclpaled In the embezzlement anil „
telved part of the money. The decisions
ore made public today , only after \\ord liad
teen received that both Mills and Whitney
were safely In custody. Whitney Is at
Orleans and .Mills Is la the custody of
olHcera here
The clnrgo under which Whitney was con-
\lctcd was that of the embezzlement of public
lic- money by an olllccr , and contains nothing
new or dlflercnt from other cases of that
sort. The coinlctlou of Mills , however , has
n great significance cud the opinion of the
Mipromo court In affirming the judgment of
the district court Is regarded 05 ono of the
most Important an ! far-reaching decisions
< ncr handed do\\n by tie couit. It Is the
first criso under the statute of this state
vvhercb } a man ban beta convicted for un
lawfully borrowing money of a public ofll-
cer , atid It Is the general opinion -cf those
who 1'avo road t'ho decision Just handed down
that the wny Is now open for the proaccutlon
and con\lction ot these who have partici
pated In and profited ly the stealings if
Itaitlcy n.ul Moore , and tint If It Is given
full force and effect In all cases the em
bezzling state officers will have plenty of
company In the penltentlnry. A large number -
bor of cass In the various counties of the
state where public officers ha\o been found
Bhort In their accounts , will nl.su bo affected
by tha now decision , and It is certain that
there will be great uneasiness among these
who have been speculating on funds fur
nished them by their fr ids who arc In
public office.
SYLLABUS OF TIIH OPINION.
The opinion Is by Justice Harrison and the
syllabus I/i as follows :
In n pro'-ecutlon by Informitlon the com-
jilalnt uiul information must charge the
Hntno olTcnso , but It Is sufficient If the
chnrgo In tnp Information is substantially
the sumo us thnt alleged in the. complaint : If
this Is so a plea of no preliminary examina
tion on the ground of \arlancc between
the complaint and Informitlon Is without
force. Cowan against State , 22 Neb. , D10 ,
Ilotlccnbcrgor iguln t State. 13 Neb. , 700.
2. If the Identity of the offense charged
Is preserved the statement of It In the in
formation or counts theieof may be varied
from thnt of the complaint to meet a possi
ble state of the proof.
3. The word "embezzle- " Includes within its
Import the conversion to his own use as
alleged in nn Information ngilnst ono ac
cused of embezzlement , and it does not con-
htltuto an Information fatally defective for
uncertainty an n ple-i that the two arc
Joined by the copulative "and. " The. panic
Is also ttuo of the llrst and any other word
or set of words used to express the mannet
of the commission of the crime.
I. In nn allegation of nn Information of
the crime of embezzlement It was stated
that the embezzlement wan of the sum of
JG.OOO In mono ) . Held to bo n sufficient ex
pression of the value , the presumption being
tint It was lawful money.
fp. Hy section 121 ot the Criminal Code any
person who advises , nld1 * or participates In
the embezzlement of public money by Ihe
olllcer or person ehaiged with the collection ,
lecoipt , safekeeping , trinsfer or dlsburse-
ircnt ot such money Is himself guilty of
emboz/lement. The words "niiy person"
refer to all and are nol confined In meaning
to a person or pel sons or olllcer or olllcers >
In some iinnner Intrusted with the collec
tion , handling or earo of public money.
C. An Iii'truotlon which consisted of quo-
tntion of the. mnln portions of the section of
the Crlmln il Code under which the prose
cution wus Instituted : Held not Improper or
misleading.
1 7. An Instruction tn this cause In regard
to consideration of circumstances : Held
proper and when consulted with the other
instructions not misleading ,
S. Instructions to the jury are not to ho
considered together nnd consulted ns a.
vvholo , nnd If so considered and construed
they me- correct , It Is Hulllclent.
9. Ccrtnln Instructions examined and held
applicable to the evidence herein nnd proper.
10. Mere noudlrectlon does nol furnish mif-
Jlclcnt reason for roverbil on review unless
proper instructions Imvu been requested nnd
refused. Hill against Stite , ti Neb. , 5W ;
Uiirron ngalnst St'ite , 47 Neb. , 'J9I ,
11. Objections to the ndmtxiilon of evidence
examined nnd held properly overruled.
U. To entitle n pirtj to a now trial on
the ground of newly ellscovered evidence It
must appear thnt the applicant for the new
til.il could not "by the exercise ot rcapon-
able diligence have- discovered and produced
such evidence at the trial. " Sections MO
nnd 492 , Criminal Code ,
13 i\ldehco held tmfllclcnt to sustain the
verdict.
JUDGE HARRISON'S VIUVVS.
In opening the discussion ot the points
luvohcd In the case , Judge Harrison snjs :
Thu jirmiccutlon wuu Instituted for un al
lowed violation of the provisions of section
121 of thu Criminal Code , which to the ex
tent wu need notlco It , Is as folloun : "If
any olllcer or other piaon charged with
the collection , receipt , safe keeping , trans
fer or disbursement of the public money or
niiy part tlit'ieof , belonging to the state , or
to any county or precinct , organized city
or vllhiKo , or bchool district In thla state ,
shall convert to his own use , or to the use
of any other person or pertoiis , body cor
porate , association or party whatever in
any way whatever , or shall use by wny of
Investment In any kind of seciulty stock ,
loan , profit , land or merchandise , or In any
other manner or form whatever , or shall
loan , with or without interest , any com
pany , corporation , association or Individual
any portion ot the public money on any
other funds , property , bonds , securities , as
sets or cITeelH of any kind , received , con
trolled or held by him ( or safe keeping ,
transfer or disbursement , or In" any othe r
way or manner , or for any other purpose ;
or If any person shall advise , aid , or in any
jmimier participate In such act , every such
Act shall be deemed and held In law to be
n embezzlement of o much of uald
or other property ns aforesaid as shall thus
be converted , wed , Invented , loaned or paid
out ns aforesaid , which la hereby declared
la bo a high crime , nnd such olllcer , or per.
pen or persons , shall bo Imprisoned In the
pcnltenllary not less tnnn one > ear or more
than twcnty-ono jcars , according lo the
magnitude of the embezzlement , nn.l also
pay n fine equal to double of the nmounl
of money , or other property so tmbczzled ,
as nforesnld. "
MAIN TACTS CIIAItOKD.
Tlio various counts In the Information are
then quoted , the first and fourtn counts havIng -
Ing the most direct bearing on the case and
uptn which the most argument W > M made ,
both In tbo lower court an , ] In the submis
sion ot the case to the supreme court , and
Iho judge proceeds :
The llrsl counl of the Informitlon charges :
"Tiint Krra 8 , Whitney on the Slsf day of
December , 1&9I , In Hirl.in county Nebraska ,
being the county treasurer of tlutl county ,
did unlawfully nnd fraudulently embezzle
and convert to his own use. 10,000 ot the
public moneys belonging to that county ,
which money hid como Into his possession
by virtue of his olllce , nnd In lil'i discharge
ot the duties thereof , he ns such county
treasurer being charged with the collection ,
receipt , wifckeeplng , transfer nnd disburse-
rrcnl ot such money , " And before slid em
bezzlement , conversion and felony was com
mitted ns nforemild by' the sild Kzra 8.
Whitney , one Hcnj.imln D. Mills unlawfully ,
purposely , fruululently. corruptly nnd felon
iously did the/ and there procure , advise ,
Incite , aid r d abet Iho said Kzr.i S. Whit
ney In tvj perpetration of siM emberzlc-
menl . .ml conversion In the manner and
fo' . , aforesaid , contrary to the fotm of the
. tututc In iieh case undo nnd provided , nnd
against the peace and dignity of lac ttate
of Ne'br iskn. "
And In the fourth count II Is charged :
"Thai the eald Uzra S Whitney , Hte. of the
< ald county , on the Slst ot December , l ni ,
In the county of HnHn and state of Ne
braska , being an olllcer , towltbeing the
county treasurer of the s ild countj ot llar-
l in and being charged as such olllctr with
the collection , receipt , ifekeeplng , transfer
nnd disbursement ot the public moneys be
longing lo the sild count } , certain ot said
money , to-wit $6,000 of the public money be
longing to the said county , did unlawfully
and fraudulently loan nnd convert to the
use of the IK-njamln D. Mills , -which sild
money had como Into the possession and
custody ot the. paid Kzrn S. Whitney bv
vlituo of his said olllce , and In his ell'-cii'ijc
of Iho duties thereof , and had been itctived
nnd was controlled and held by him , the
c.ald izra S. Whitney , for safekeeping ,
transfer and disbursement as count * , ticns-
urcr ns aforesaid. And the cnld I5i.nj imln
D. Mills , t he'll nnd there being , did Ihui nnd
Ihcrc unlawfully , knonlnglj and feloniously
advise and procure the Hzra S. Whitney ,
county tieasurcr as aforesaid , to loan him ,
th0 Uenjimln D.Mill" . , the. said $0,003 of paid
public money , nnd Iho said Hcnj iniln D.
Mills did then nnd there lectlve from nml of
lisra S. Whitney , treasurer of said jlaiHn
county ns afoic ald , said $ G,000 , lie , the said
Henjamln 1J. Mills , then and there well
knowing the same to be the public moncv
of said Hnilan county , received and held ns
aforesaid with intent to embezzle nnd con
vert to the use of him the "aid LSenjimln
D. Mills , contrary to the form ot the .stilute
in such cases mode and provided and against
the peace and dignity of the state P Ne
braska. "
WHY IID 13 CONVICTED.
Following the quotation and stalement of
the case the opinion goes on to say :
Tno argument for plaintiff In error Is
based In part nt least on the proposition
that this cour.t ( the fouith ) ot Iho inform i-
llon'charges no moro than that Mills bor
rowed the money of the county with knowl
edge that it was the county's money , and
that thin Is not an offense ; nnd proceeding
from this standpoint , among oilier mailers
urged In support of the position taken ,
stales that secllon 121 of our Criminal Code
Is largely copied from Ihe act of congiess
passed In 1S4G , and that It Is .a significant
fact that the original act of congress has
since been amended to Include a borrower
of public money ; from which the conclu
sion Is drawn that the act ns originally
passed did not Include sueh ni party ; hence
Iho amendment , nnd the further conclusion
Is drawn in nigumcnt that out section being
largely a copy of the original act of con-
Kiess , cannot or should not be construed
to Include the borrower.
We will say hero that we can by no moans
agree thai the fourth count of the informa
tion charges against the plaintiff In error
a mere naked borrowInjr of Iho monej of
Huihin county from Its treasurer with the
knowledge that It belonged to the county ,
It charges nn embezzlement of such money
Its mlsappropilatlon or unlawful and felo
nious conversion and lhal plalnllff in crroi
did advise nnd procure tlio same , or In
other words , actively participated by words
or deeds In the act charge.
Section 121 of the Criminal Code embodies
many of the constituent elements of the
act of congress lo which reference has
been made ; but It bears a strong resem
blance , Is In fact , with some few necess try
changes and omissions , the first to meet a
difference In conditions and political subdi
visions in this Hlatc , a reproducton of sec
tion 15 of an act passed by the legislature
of the state of Ohio , April 12 1S58 Reference
IH made to a slmllni prosecution under this
Ohio statute and In that cnso tlio supreme
court of Ohio held : "By the act of Aptll 12 ,
1S5S , the paity advising , aiding1 or partial ,
paling In the embezzlement of public money
by an olllcer or person entrusted with It , Is
himself eullty of embezzlement , although
ho be not himself an olllcer or person en
trusted with public money. The crime of
advising aid or participating In nn embez-
zlcment by a public olllcei , Is made by said
act a distinct nnd hiibstnntlntlvo ; offense ,
and,1110 patty guiltj of It miy be put upon
his trial and convicted , before the convic
tion , of the embezzling olllcer. "
COMPLAINT IS SUKFICICNT.
As to tie Biilllclency of ( ho complaint , the
ctilnlon continues :
In section 124 It Is statcdn"If any person
ahnll advise , aid or In any manner partici
pate. " This clearly Includes all poisons , olll.
cers or others entrusted with the care or
custody of money , or nny others. The count
contained a sufllclcntly dcfinlto nndpecinc
charge of an cmbc/zlemont as se l forlh in
section 121 of the Criminal Cede ; hence It
stated a crime known to our law.
In regard to the cirors claimed because of
defective and prejudicial Instructions on part
of the trhl court , the opinion enters Into
an exhaustive discussion , Involving many le
gal and technical points , and holds -that there
Is m vital error shown oci the record of the
district court proceedings. The closing paia-
graph of the opinion la as follows ;
It Is also urged that the evidence was
wholly Insufllclent to sustain the verdict.
It would scivo no useful purpose to quota
It at length or summarize , it In a state
ment here , After a careful examination of It
we must say thnt while , from It It might be
said that the money alleged to have been
the subject of embezzlement may have a
portion or all of It gone Into the hands and
care of tint plaintiff in error for the prob.
able purpose of being deposited In the bank ,
a designated depository for such funds , U
Is clear that subsequently this purpose was
charged and the money of the county was ,
In direct violation of the law on the sub
ject ( section 121 of the Criminal Code ) , al
lowed by the treasurer to bo retained by the
plaintiff In ertor for use and not for de
posit , and this by and through the advise
and procurement of the latter. That such
subsequent action by which the money was
I ( Continued on Third Pace. )
THEODORE DDRRANT HANGED
Murderer of Blanche Lament Expiates His
Crime on the Gallows.
PROTESTS HiS INNOCENCE TO THE END
Ilecelirit Into ttip Cntliollc Pnlth
lloforo tlio Mnrelt ti >
the UnllnwN AV H Com-
SAN QUnNTIN , Col. , Jan. 7. When Wil
liam Henry Theodore Durrant died on the
gallows this morning for the murder of
Blanche Lament , ho gave such an exhibition
of coolness and nerve as 1ms seldom been
seen mider similar circumstances. Hctieful
almost to the very last minute that some
thing or someone would Intervene to save.
him , ho walked to tfio scaffold this morning
and made his little speech protesting his In
nocence as calmly and with as distinct
enunciation as If he had been addressing an
assemblage of friends upon some ordlnirj ,
topic of the day. Ills face was rale , and his
oca wcro red , but his voice was firm , ani
he stood as solid as a rc < : k while he pro
claimed his Innocwico and professed forgive
ness to these who , ho said , bad hounded
him to death.
There was not a hitch or accident to mar
tlio plans of Warden Hale lu carrying out
the law. The noose was adjusted , the tiap
was sprung , the tlgh.t rope held , and Dur
rani's dead body dangled. The neck was
broken by the fall of over five Toot , and
fifteen minutes later the murderer's body
was placed lu the coffin.
In spite ot the exciting events of last
night , when Durrani was besieged by news
paper reporters and talked to his parents
until 11-30 , he rested easily during the night ,
and shortly after G o'clock ho awoke anil
bade his guards good morning. Warden Hale
had orovldcd a ueat suit of dark natcrhl In
honor of the occasion , and these clothes
Durrani quickly donned. Ho noticed the ab
sence of collar aaid necktie , however , and
Knowing full well- the rcascti for their omis
sion , ho asked for them , explaining that a
turndown "collar " would not Interfere with the
noose. Then he sat down to a most excellent
breakfast and ate heartily. During the early
morning hours ha did not l.avo much to say
be > end expressing a desire that no nows-
naper men should bo allowed to eeo him.
This request was complied with.
GOGS BACK OX TUG BAPTISTS.
Consistent to the last , Durrani died pro
fessing religion. Hut he died accepting , al
the last moment , Hie comforts of tlio Catholic
church , Instead or those ot the Baptist faith ,
in which ho was rcaied. Ilov. Mr. Radcr , a
Protestant minister , had m ranged to ascend
the scaffold with Durrant , but the minister
would not say that he thought Durrant In
nocent , and the condemned man declined to
accept his services unless Mr. Ilader professed
belief In his Innocence. Tfien It was that
the once ardent Baptist turned tothe Catholic
chinch for consolation , and called upon
rather Lagan , a orlest who had frcquenlly
visited him In prison , to attend him. rather
Lxigun responded promptly and performed the
last solemn rites of the church. Durrani
remained In close consultation with the
irlcst , and seemed to be deeply interested
In the Impiesslvo ceremony.
As the hour of the execution approached ,
the prisoner became somewhat restless Hlb
father and mother were admitted to bid him
a last farewell. The elder Duriant giaspcd
his son by the hand , and then the joung
man turned to comfort h'e mother , who
cried hysterically. Dm rant embraced her
tei.derly and oiylng , 'The hour has come for
im to part , " put her gently away. The grlef-
strlckcn , mother was led to a private room ,
where she remained uc.til . after the execution
His fathei , however , went to the execution
room and , hiipported by two friends , saw
his son meet his death.
Warden Hale did not attempt to hurry
matters , but allowed all possible time 'for
the supreme court at Washington to take
some action. Finally , when word vvarf flashed
across the contlnenl that the supreme court
liad declined to Interfere , the warden ordered
the program of the day to be carried out.
At 10 30 o'clock Durniut , accompanied bj
Father Lagan , appeared at the door of the
execution room. Ho was followed by his
father , a friend , Warden Hale and the
guarJs. His father and the friend walked
iround the gallows , while Durrunl and his
Iceepers climbed to the gallows platform. In
stantly on arriving at the gallows his legs
and arms were pinioned , and the rope W.TJ
placed upon his neck. The hangman Was
ibout to adjust the bMck cap , when Dur
rani amounccd his desire to speak.
PROrESSnS HIS INNOCENCE.
Permission was glvea and The doomed mur
derer spoke < w follows :
"I deslio to say that although I am en In-
loccnt man , Innocent of every rlmo that has
jcen charged against mo , I bear no animosity
toward those that have persecuted me , not
even the press of San rranclsco , which
10uruled mo to tbo grave. If any man thinks
I am going to spring a sensation I aiy not ,
except It is a sensation itial I am an Innocent
man brought to the grave by m > persecutors
But I forgive them all. They will get their
lustlco from the great God v.ho is master of
us all and there I also expect to get Justice
that Is , the justice of on Innocent man ,
Whether or not the perpetrators of the crime
of which I am charged aic discovered , it will
nakc no difference to mo now , but I say this
day will to a sbamo to the great state of Cul-
foriila. I forglvo everybody who has perse
cuted me , an Innocent man , whoso hands
iavo never been stained with blood , and I go
o meet my God with forgiveness for all
men , "
The words were delivered slowly and dls-
tlnctlv and without emphasis , The crowd of
spectators grouped closer to the wooden
framework that the > might nol lese a word
of what wus being said. Not a sound could
be heard except the even tones of the man
about to die.
Durrani finished quietly and had scarcely
concluded when the black cap was placed
over his face. At ( ho same Instant Hangman
Lunt raised tils hand , the trap was sprung
and with a rattle Durrani's body shot
through the opening. There was a sound as
of a stout rope druwn taut , odd a broken-
necked criminal swayed to and fro for a
moment , when tbo body became motionless.
The crowd turged < fonvarJ , 'but the warden
was heard to say , "Stand back. " The doc
tors felt the putee and finally decided that
Durrant was dead. In just cloven , mtautes
and twenty-eight seconds all signs of Ufa
iad vanished and the meat noted criminal
of the nineteenth century was dead.
TLo body was allowed to hang for fifteen
minutes. It was cut down and placed In a
ilack ccffin provided by an undertaker from
San rranclsco. It is not jet known what
disposition of the body will bo made , as Dur
rani's parents have been unable BO far to
lucurc accommodations in any ot the local
cemeteries for the body of their son. It 1
probable the body will bo cremated ,
SPECTATORS HURRIED OUT.
As soon as the drop fell the spectators
were hurried out oC tha roam , and nobody
remained except the physicians nnd tbo
newspaper men. Durrant , sr. , went to his
wife , who 'was waiting la ono of the gimn
rooms , and together theyaccoirpantcd the
body of their son to Sin.rranclsco. . .
The prison officials wore all enthusiastic
In their pralso of Durrani's nerve. It hat
bccci feared by them that In spite of his
apparent bravado the condemned man wouli
break down at the last moment and make A
scene. At ono time , several dajs ago , Dur
rant guvo evidence of a collapse , but ho
managed to pull his ncrvo together once
more and proudly declined all offers of ntlmu-
lants to enable him to make a bold showing
ca the scaffold. The criminal was apparently
proud of his race , and avowed that hoouli
die like a Durrant. "
Durrani's most urgent request of Warden
Hale was Wiat no autcpsy bo held on his
body. The prisoner's medical training seemcc
lo have Imbued him "with a horror of the
surgical treatment of corpses , and ho vowcO
that no Kulfo should ever touch his flesh.
Ho requested that the rope with which he
was hanged bo burned. Ills wishes In bolU
these respects were observed by the warden.
It was a sad day , not only for Durrant , but
for clqbt other murderers , who arc confined
In the prison , and whoso fate depended on
the flglil made by Durrani's attorney lu his
Mlf. They were all prepared to follow
the same tactics for delay , but mow that the
courts have shown tlut It is possible to Uang
a murderer iu California , they have given
up hope.
.NO unMKf ruon SSLIMJUMK COURT.
DL-I-UIII-H to Interfere Tilth Uo < ! iitoii
of Di-utli boiituncc.
WASHINGTON , Jan. 7. The United States
court at three mlnutea i ast 1 o'clock toJay
tendered Its final decision In the case ot
Thcodoro Durrant , refusing to Interfere. The
matter v.-ns before the court on an applica
tion made by Attorney L. P. Boardnnn for
leave to fllo a petition for a writ of habeas
corpus In Durrant'a behalf. This applica
tion wai only made by Mr. Boardman after
ho had exhausted all ether resources In
the shjipo of appeals to Individual members
of the court. After seeing Justices Brewer
and Harlan last night , lib called upon Justice
Shlraa before the convening ot court , but
met with itho same denial which ho had
received at the hands ot the other Justices.
Ho KIW Mr. Shlras at Ills residence and to
him presented his petition for appeal from
the decisions of the California courts , In
'brief form. Without going Into the case
Justice Shlias denied the application In both
cases. After this procicdlng , Mr. Board-
man had no tlmo left to tec other Individual
justices and ho repalrel to the court room
with the Intention of piesontlng the matter
to aho congregated court. Ho prsentcd a
pcional petition In his Own name In Dur
rani's Ibehalf rather lhan to appear as the
latter's counsel. To appear In the latter
role It would have teen necessary for him
to secure admission to the bar and that
proceeding would have requited time which
Mr. Boardman felt ho could 111 affoid to loso.
In presenting the petition ho had the un
divided atlentlon of the entire cotut , all
the menlbers ofwhich wcro present except
Juslico Brewer , and of an auJiencovhlcli
filled all Iho seats and rtandlus room In
Hid portion of the hall outside of the bar.
Mr. Boardman lost no time la presenting
his prajcr to the court. Two or three per
sons wcio admitted lo practice and the oaths
administered to them had scarcely fallen
from the lips of Clerk JIcKcnny when the
California atlorney moved swlflly from the
rear of the bar enclosure to the front , where
ho calmly took hla position and began his
presentation of the m-Uter In hand. He
began by saying lhal ho realized that h's '
method of presenting the case as a personal
petition of his own was outside of the usual
line of habeas coipus proceedings In thlo
court. Ho briefly outlined the fact that Dur
rant VMS under sentence ot death on the
charge of murder In California and that the
execution had been set for todaj. "I ap
pear , " ho said , "in person , in behalf of my
client , who is confined in prison In Califor
nia , and who , because of this restraint. Is
unable to make petillcci In his own behalf. "
He then proceeded lo read his petition at
length , picscntlng UIQ points which he had
hitherto presented to the tadlviJual justices
of the court , making application for an ap
peal from the decision of the United States
circuit court for the Northern district of
California and for a wilt of crier to the
state supreme court of California with a
hope of thus getting the matter into thh
courl and occurlng a stay of proceedings In
the matter of Durrani's execution by obtain
ing an order for a writ of habeas corpus
Ho alFo set forth his action In presenting
the matter to Justice Brewer , and other mem.
hers of the court In thcli Individual char
acter. As ho proceeded Mr. Boardman wao
frequently questioned by members of the
couit , whoso questions were evidently made
'or the purpose ot elucidating thu points
Mr Hoardman Bought to present.
Ho sa'd ' in reply to a question from Jus
tice Harlan that the main point in his ap
plication for an appeal In the habeas corpus
proceedings before the California federal
court wus his reliance on hU constitutional
right of appeal , which iho asserted had been
denied by the refusal of the clrcull eouti
to grant this appeal. Ho also asserlcd that
the state court , * y proceeding to sentence
Durrani to execution November 8 , last , before -
fore the mandate of th < i United States supreme
premo court refusing to grant a writ of
habeas corpus had ibeen received , violated
the constitution and laws of the United
States and acted aa a denial of the rights
of his client. Talcing' up the proceeding
in the btato supreme court , Mr. Boardman
detailed BO mo of tbo prrors alleged to have
been committed by the court , reading mi
nutely from the minutrs of the court , closing
with the prrscnta'tlon of the claim that thu
decision of tha federal supreme court In the
Jugtro case loft no question of the right
to prosecute an appeal In a fclmllar caeu ,
It was then thai Chief Justice Fuller ut
tered a sentence which evidently forecast the
decision of the 'court ,
"Wo decided 111 that case , " said the chief
Justice , "that the state com ts could proceed
In such cases in the absence of tbo mandate
of this court. "
With thl.-i Mr. BoirJman'a presentation of
the case closed and the court retired for
consultation at 12:23 : , returning at three
minutes past 1. The croud In the court
room remained. The members had scarcly
taken their seats when the chief justice an
nounced the decision , uajlng :
"In the matter of < tbe application for a
writ of habeas corpus In the case of Thco
doro Durrani the petition to fllo such ap-
illcatlon IB denied by tbo unanimous opinion
of the court. "
Upon this announcement a majority of the
spectators filed out and the court took up
, ( Continued on Seventh Page ) J ,
WILL HAVE NEEDED WATER
Exposition Directory Discusses the Vexed
Qacstioi Fully ,
PEACEABLY OR FORCIBLY , IT MUST COME
Committee Appointed ( o Hot ( lie
IVA'nKT Coniimii'H 1'roixiiiil , After
\Vlilfh tinCOIITNC of Ai'tlou
Will lie A it opt i-it.
The Board ot Directors ot the exposition
took a turn at the water question at Its reg
ular meeting jcslenlay afternoon and ap
pointed a committee to wait on the olllclals
of the water company and learn what they
will do toward suppljlng the exposition with
the water > whlch Is absolutely necessary to
Its success. This committee will reporl to an
adjourned meeting of iho board to be held
for that purpose at 4 o'clock Tuesday after
noon. According to scvoral vigorous expres
sions of opinion at the meeting of vestcrday
prompt and decisive action to compel the
water company to supply the necessary walcr
will be taken In case the mission ot the spe
cial committee Is unsuccessful.
The board also took up the matter of pro
viding accommodations for the thousands of
visitors who will bo In Omaha during the
coming summer and fall , and n bureau to
bo known as the Bureau of Public Comfort
was created and placed under the direction
of the Dcpailmcnl of Wajs nnd Means This
bureau will at once lake up the work of In
vestigating the available accommodations
and devising plans for providing for any de
ficiency. The personnel of thla bureau was
uol dclcrinlncd , the appointment being left
to President Wattles , who said he would de
fer making the appointments until he had
consulted with the directors to find men
who would devote Ihe necessary lime to the
work , i
The meetings as convened about 3 30 p. m.
wllh a bare majorlly ot the directors pres
ent.
ent.Tho
The following document , lowhich was at
tached a string of signatures fully fifteen
feet In lenglh , was presented to the meeting :
Whereas , It hast been stilted by President
Wattles of. the Boaid of Mnnnfcors of the
Trunsmlislsslppl exposition tint the Agri
cultural society of the state ot California
desires to build .in Immense vvinu vat on
the exposition grounds with a capacity ot
100,000 gallons , which It will Uecp tilled and
every visitor to the exposition will be
pilvllcg-cd to drink at will , vvlthoul .money
or price , thcieforo
Ilesolved , That vvo , residents of Nibr.i ki ,
do most earnestly protest against the muk-
ln of such concession by the TiaiiMiilssis-
slppl commission , b'lltvlns thai the permit-
tins of sucH proposed exhibit of wine and
Its free use as a beverage by nil who care
to drink it , legnrdlcss of sex : or ugc , must
work untolrt injury to the morality of the
state and the cieating of app'tlte for strong
drink In the young- , will be a curse to 0111
people and In every way detrimental to the
best Interests of our commonwealth.
This resolution was unanimously adopted
by the Second district Woman's Christian
Temperance union at itb annual convention ,
August 24 , 1897.
President Wattles stated that the only pos
sible foundation that existed for the state
ments contained In 'tho ' resolution was the
fact thai some of llic members of the Los
Augelcsi Chamitur of Commerce had made
Inquiry aa to space cbuigo and other Items
of cxpcuso for the display of a "Nlaguni In
Wine , " but no further steps had focen taKen ,
and Ihero seemed llillle probabllily lhal any
thing would bo done.
The document < \vas placed om file.
IlEPOtlTS FROM MAN \GEIIS.
Reports from the various deparlmcnts were
called for and 'Manager ' LIndrey of the De
partment of Wayo and Sleai s asked that ho
ho granted further time In which to publish
the names of delinquent subscribers to ex
position stock , as ho was not ready to make
the publication. The tlmo was extended to
Tebruary 15.
Manager Rosowatcr submitted a written
annual report of the Press Bureau of the
Department of Publicity and Promotion ,
which ho said showed that the bureau had
distributed 268,112 documents of various
kinds and had secured ! approximately 1'JOO-
000 words ot free advertising In papers ot
every class in all parts of the country. Sev
eral of the most important publications In
the country are ineparlng for articles which
will appear In the near future.
Regarding the promotion feature of h's
dcpirtmcnl llr. Rosewater said he had not
had time to prepare a written report , but hu
lovlcncd the situation ( briefly , lelllng of the
work lhat Is being done. About thirty states
are being promoted and the prospect for suc-
cesu Is Haltering. The western states are
beginning to recognize the Importance of the
exposition to them and the eastern states
are taking ia "great interest. Ho predicts
thai three-fourths of the states In the union ,
as well as a number of the principal foreign
countries , will bo represented. Jn this con
nection Mr. Rosewater aaid ho was con
vinced ithat It will bo necessary to ralso
moro money and erect other nnd largci
buildings to accommodate the great numbei
of exhibits which will bo iccelvod.
Manager Bruce of the Dcpartmenl of Ex-
iilbits submitted -written report detailing
thn work which was being done by the sev
eral bureau : ! In his department ,
Manager Dabcock said tie had no rfpoit
o make for the Transportation department
urther thaa to say that progTeM was being
nade with the railroads and matters were
i a satisfactory state.
Manager Llndsoy brought up the question
of acpommodatlon Tor Ihe mauy visitors who
vlll como to Omaha during the c > yosltlon ,
saying Iho matter should bu agitated , as the
people are coming and something must be
lone ,
Dudley Smith , a member of the special joint
committee appointed by the Commercial club ,
Woman's club , Exposition association and
{ olghts of Ak-Sar-Bcn , to take tfoarge of
lib matter , was at lied to state what had
icen done. Ho told about tbo meetings
vblch have been held 1iy the committee and
ho Investigations which have been made to
orm a basis for further work. He Eald the
BCH30 of the committee seemed to be that
ho exposition directory should take t'.ie
nltlatlve.
Mr. Rosewater eald this question ot taking
care of the great number of people who
vlll visit Iho cxpoeltko was coo ot the most
mportant matters with which the people
nust grapple. Ho said a systematic canvas *
or tills city should bo made anil a careful
estimate made of what Is necessary to be
done. The members ot the executive com.
mlttco already had all they could possibly
attend to , and a committee fliould ho ap.
lolntcd from tlio board which could she
everal weeks to the matter.
Dudley Hmlth moved the appointment of
a committee of five , to bo known as the
lureau of Public Comfort , and to bo under
ho direction of tbo Ways and Means do *
$72
THE BEE BULLETIN ,
W nthr forecast fnV
Coldcri Westerly
rase.
1 , Two Nelirnskn Kmbrrrlcrg KrnteucTclr'
Theodore Durrnht Is I'xcriitnl.
The imposition \\l\l \ lliivc Witter.
Ituslncss .lira VttuiquM HtlllUcll.
2 , CiillhiKS from the 1'enslon 1.1st ,
3 , Cub n llcllof Coinml Klon Nnmrd.
Scheme to Ilnndlo Imposition rrclght.
Affairs t South Onmhn ,
> , Kdltorlnl nnd Comment.
0. Condition of the Clt } ' * runcls.
. Hanuriicturlnfj nt the imposition ,
Illlihcock ApologUrs lu Upcti Court.
0. Council UlnCM Locnl Mutter * .
Iowa Itppubllrati llouio Ciuipus.
7. Hiinlnr < * i Hrvlntv of thn Week ,
Doings of tlio Ohio Polltlclnnn.
8 , Drclnlon In I.locmn Cimo Todt } .
I'roRrntii for ditrknonlnn In > .
I'.iclllu Impress Couipiny AfTalrs.
0. Attack on the Stock imchniiRc.
10. lilts of romlnlno Oosslp ,
11 Commrrclnl nml rinnnclnl XCHS ,
12 , "Tlio Kscnpe , " by CutcllfTo 11 } no.
Tciniicrnture at Oiiialiat
Hour. lo . Hour.
R ii. in . . : is 1 n. tn .
ll n. in . : ts i : p. in 1:1 :
7 u. m . ! IH ! l p. in 10
N . m . : u > -i n. m 10o
i ) n. m . : u > n p. in > o
10 n. m . iu o ii. m
it n. in . t- 7 ii. in.
m in. . , . iu 8 11. in : < 7
ti u. in : tn
pirtmcnt. This was adopted , and I'rcsldcnt
Wattles announced thai ho would appoint
the committee after consulting with directors
and finding flvo men who would agrco to
serve.
WATER QUESTION TAKEN Ul > .
The iiuetlng waited tieaily an hour for
Manager KIrkeudall to imKe a report on the
water works question , but as he did not
appear. It was suggested that a matter of
such Importance should bo taken up without
ceremony and dlbcus&id by tue boaid.
Manager Hosewater was called upon lo
state the present hiatus ot the exposition
and the water question. Ileoild ho hesitated
somewhat , to lead the discussion , ns he had
been falsely charged with having a solllsh
Intelesl In the affairs of the water company
lie presented the serious phase of the mat
ter brleflj. Ho explained that water was
the all-important consldciallon and all thnt
the executive committee nsks of the beard
of directors Is that water bo supplied. The
committee docs not ask thai Ihe franchise
of the watei company be extended or thai
any other bpcclllc steps be taken , but all 11
osks Is water A fire would make It abso
lutely impossible to hold the exposition , and
the committee appeals to the directors to
see thai water Is furnished In order lhal the
mcincj Invested bo not entirely lout.
Mr. Ljman said 11 looked as though the
town was bslng held up by the water com
pany In order to secuie certain concessions
Ho said it had been staled al a meellng
lield at the city hall that the exposition manr
igement waa In. collusion with the water
company to secure nil extension of its fran
chise.
President Wattles saU he looked at the wa
ter question simply as a business proposition.
He believed that the only logical solution
of the questlOD Is the securing of water from
the water company. There arc many rea
sons why 11 Is not advisable to procure water
from ny other souico that seems available ,
as the charge might bo made that the water
is Impure and unfit for use. He outl'cied ' the
position of the water company to the
effect that It has not the capacity to bupplj
the necessary water. The president eald ho
was opposed to the purclaso cf the water
company's plant and believed that the best
solution of the question would to to make
the best bargain that can bo made which
will secure the water , whether thai would
involve extending the franchise or not. Ho
.said he bjd A petition , signed by all but
eighl members of Ihe board of dlreclors , ask-
ng thi > city council to do the only thing the
exposition manageme.it had ever asked It
to do
WHAT WEBSTEK SAID.
Mr. Kllpatrltk coked Mr Webster to re
peat the statements ho had made to the
meeting in. the city hall regarding Iho stale-
nents of the officers of the water compsnj
during the recent Eiiit in the federal court ,
which he said disproved the statements now
nado by the water company representatives
Mr. Webster said the engineer In charge
of the riorenco pumping station , Captain
rtcjnolda , had testified that the average
laily consumption of Omaha , South Omaha
and East Omaha Is 14,000,000 gallons and
that the engines have pumped 26,000,000 gal-
ons Into the mains per day. Mr. Webster
sajs that this shows that the capacity Is
about double the present consumption. In
addition to thbs , Mr. Webster said , Superin
tendent Hunt had testified that the Hurt
street pumping station has a capacity of
i,000,000 gallons and the engines there are
; ept constantly ready for use In case of ac
cident at the riorenco station. He contended
that this dlupobcs of the claim that the ca-
mclty of the plant Is not sufficient to supply
.ho exposition.
In reply to questions from other dlrcctoia
Mr. Webster bald ho believes the water com-
lany can bo compelled by the courts to fur
nish the water icqulred by the exposition
the same an It can bo compelled to supply
a private consumer.
Mr. Kountzo asked if the company Is not
compelled by its franchise to supply the
water icqulred by the citizens ot Omaha
without having any claim for further privi
leges. Mr. Webster replied lu the alllrma-
llve.
llve.Mr.
Mr. Lliuteey asked how much tlmo would
bo required to get a mandamus iu opera
tion.
tion.Mr.
Mr. Webster said that would depend on
the judge granting the ordei. Ho could
order the witter company tn supply the water
and no supcrsudeas would bo taken , BO that
the company would bo compelled to furnish
thu wnter pending a hearing of tlio case.
Mr. Webster then asked President Wattles
whether the water company had told him
before or after the suit { iroughl by the city
had been decided that It had nol the capacity
to supply the exposition , The president was
not positive , hut eald ho felt certain that
tha statement had been made both before
and after the decision ,
WHAT THIS COMPANY CAN DO.
Mr. Montgomery Bald ho la tatlBfled that
the company has all the capacity required to
furuUh the exposition , but ho Is In doubt
whether the city should buy tbo plant when
the franchise expires or flvo veara from that
time , 'Ho ' denied the charge that ho pre
pared tbo ordinance now pending In the
council , but sa > a ho Is nol euro but that bo
favors It. Ho charges that the water com
pany Is simply taking advantage of the ttltua-
llon and Irving to secure concessions and de
clares that steps should bo taken to compel
the water company to supply the exposition.
He reiterated a statement made by Mr. Web-
tter that the water company has no right to
{ ConUuutd oa Scccod Fage. )
NEWOflTLET
Glories of the North anil Sonth Una-
Eloquently Extolled ,
BANQUET TO PORT ARTHUS ROUTE MEN
Officials of the Line the Quoats of iho
Oonimercml Olub.
PRESIDENT STILLW LL'S ' GREAT PROMISE
Emancipation of Ooranioroial Interests from
Invidious Discrimination ,
VALUE OF THE LINE TO COMMERCE
tilKr MclliiRli of Oiimlin Tell i. < U4
Morr of tlu > CudCllj'N
mid tilt * l'rr Ml iiu > * , ,
The reception nnd dinner given by iths
Commercial club to the oillcors ot the Port
Arthur roil to nt the Commercial club rooms
last night was ono of the moat sucussful of
the many affairs undertaken by thnt or
ganization. The visitors arilvcd ctrly In
the evening and were met at the depot by
the commltteo appointed for the purpose/
Messrs. J. II. Dnmont and W R Dennett.
They were escorted 'to the Commercial
club , whcro n number ot the members had
gathered nnd a reception was held until
about 7 o'clock , when the march to the din
ing room wca taken up Three long tables
extended the full length of the laigo room
and shorter 'tables ' cttendol acres * the 100.11
al the cnd3. These tables wcro iirettlly , ,
dccoraled with cut flowers and potted plants ,
The gucbts of the evening were seated nt
the wist end ot the room , President Still-
well occupjlug the scat of honoi at the light
of President Dumont of iho Commercial
club and at cither hand wcro Robert Olll-
ham , general manager of the Poll Arthur
route ; H. C. Orr , ccncr.il pitsengor agent ;
C. 12. GrannUs , treasurer of the Port Arthur
& Mexican Gulf Steamship companj ; D. J.
Hofi' , vice president ot 'the ' simo compaii ) ;
II G. Donild , ii.unagcr of nuropcan strain-
ship connecting llius ; C. A. Uraloy , member
of the legal dtpaitmcnl of the Poll Arthur
route , and ndgir Miver , private scuotary
of President Stlllwell. The speakers of the
ovcnliiK occupied scats at this table Iho
other tables -noro occupied by fully 200 proni-
incn/t piofes-slcml nnd business men , all
lines of trade 'lelng lepresenttd.
OPDX13 THn TOASTIXO.
After Ihe clgais wcro passed President
Dumont of the Commercial club rapped for
order , illo complimented the members of the
club for the large turnout and said It auguieii
well for the future of the club. The present ,
he eald , 'was an unusual occasion , as It it not
often the club has the opportunity to wel
come such distinguished guests. Ho then
complimented the management of the 3'ort
Arthur route for their foresight in wiping
out the arbltraiy freight rate which the people
ple of Omaha have been to Ing for jcnrs to
have abollsheJ. Ho discussed this question
nt some length and predicted that Ihe llmo
would soon come when thlj ai biliary charge
would bo entirely removed by all loads.
President Dumont introduced the tonsl-
master of the evening , John C Cowlri ? who
was warmly received. Ho thanked the as
sembly for the honor conferred upon him and
said ho would not attempt to make a speech ,
but he referred brlellj to the Importance ot
rallwajs to the commerce and life of a na
tion and the necessity of fair and Impartial
treatment to all localities. He said ho knew
ho expressed the wishes of all picsent when
ho thanked the guests of the evening for the
great favor they had conferred upon this
locality. Ho announced that oulnir to thn ab
sence of W. r. Gurley the address of wel
come would bo omltled , bul ho said Ilia
welcome would bo jusl as cordial.
General Cowln Ihen announcoJ Iho toast.
"Port Arthur Route and the West , " and
called upon Iho hea.il of lhat system , Presi
dent A. 12. Stlllwell , to respond.
The applause and cheers thai greeted
President Stllhvcll shook the building.
PRI33IDK.NT STILL WDLL'S IlUSPONSn.
Mr. Stlllwell expressed his appreciation ot
the reception which had been accoidcdi his
associates and himself , and Eald the Poit
Arthur route had becra built by western men ,
for the west He referred In a humorous
stniln to the difllcultlcs which had bctx-t the
builders of the route In Its earlj day. Many
of the dllllcultles which had surrounded the
building of western rallwajs ho said iKUt
been caused 'by ' the fact lhal Iho ofilcers ot
IhCbo roads had lived in the cast and had
little knowledge of the west , but the officers
of the Port Arthur route .ill lived in the
west and had their Interests here , and were
prepared lo meet the conditions constantly
ailslng.
The speaker then sketched briefly the na
ture of the country through which the Port
Arthur route passes , In this connection ha
refeircd to the coal flclda of which Pltls-
buig , Kan , Is Iho center , and remarked that
a great deal of this coal now comes to Omaha
and' much moro of It will como hero mi
soon as n short line now under construction
Is completed. Ho referred briefly to the prin
cipal districts along the route and the re
sources of HICBO districts ,
The route , ho eald , ended at Port Arthur ,
which ho eald was destined lo bo the great
est seaport In the f-outh To Illustrate the
faith of tlio people Interested In the louto
the speaker said ho had Usucd a call In
November for ja.000,000 to build docks at
Port Arthur and in December the liookn wcro
closed with subscriptions amounting to 15-
021,000. Ho said the canal from Port Aithur
to deep water will bo completed July 1 ot
this year , and this will finish a car.'il ' tlio
same width and depth as the Sue/ canal
Ho offered to furnish cars and tal.o all
present to Port Arthur some tlmo next montli
to fihovv them whether what he bald is true.
This offer was greeted with onthucMetlo ap
plause and expressions of approval.
The speaker then outlined the several
ntcaniEhlp lines which are already arranged
for from Port Aithur to a largo number of
ports In Mexico , Central and Soith | America ,
and European ports , The line to Mexico
will bo In operation next month and a largo
outlet will be afforded -via Part Arthur to
the commerce of the west.
In closing , President Stllluell thanked hla
hosts for Iho entertainment afforded and
eald he would feel much more thankful 1C
they would all acccpl bin Invitation to visit
Port Arthur.
JUDGE M'UUCUI ON OMAHA. *
After the applaueo had subsided the toasN
master called on W. D MtHugh to respond ,
to the toast "Omaha as a Shipping Center. ' *
In opening Judge McIIugh paid a M&W