Western Reserve chronicle. [volume] (Warren, Ohio) 1855-1921, 1857-03-18

I
or have been in court.
The circumstances attending M'Ewen's
defalcation, or embezzlement, and the
mean: adopted to determine the matter as
to my liability. are these: r. S, McEwen
was Clerk at the time was appointed
Warden. and by and with the advice and
consent Of the Directors, / continued him
in Office. BY the rules of the PeniIenti
airy, the Clerk is made the financial assis-
tant OF the Warden and also to assist him |
generally in the business of the Institu-
tiOn- To prevent any confusion as to
whose hands the money was in, all pay
ments were made to the Clerk, and dis
bursed by him.
On the 9th day of March last. New
en- absconded with large amount of the
funds Of tie Institution. or unaccounted
for. He was soon after arrested in Chi
cago on the charge Of embezzlemen. and
brought back on the requisition OF the
Governor.
Immediately after it was known that
McEwen had absconded, the money on
hand. was counted by the President of
the Board of Directors, in my presence,
and an examination of the books entered
upon. and the following was the result:
McEwen had drawn, as he had always
done, the money on the bills Of the off,
GERS and guards for the quarterly settle
ment ending March lst. 1856. All the
money left in the office. of whatever fund,
fell short S875.la of paying off the Off
GERS and guards. who had not been set
tied with. Also $50. due Miller in the
settlement with Patterson, one of the
guards.
The overwork money book. containing
the accounts with sonvicts for money re-
ceived and paid out, shows a balance
against McEwen Of S54S.75. 1t was al
so asccrlained that the overwork money
for January, 1856. had been collected By
McEwen and not entered upon the books,
amounting to SiOO.7O. These several
sums amount to Sl544,5 SO.
1t WAS also soon after discovered that
from December 1855 10 March 1856. be
had collected from guards on sccounts
against them. between FIVE and six hun
dred dollars which he had never entered
upon the books or accounted for in any
way understanding his defalcation
over two thousand dollars.
| / claim that l am not liable for these
or any other defslcations or embezzle-
ments of McEwen. and have so urged be-
fore the new Board of Directors and for
the purpose Of having the matter settled
before l went out of Office, proposed
making an agreed state OF facts, and sub
NIT the case to the court. But the Di-
rectors preferred leaving it TO the AItor-
ney General, to which agreed. and the
matter was submitted. The following is
copy Of his written opinion delivered to
the Directors:
RESPONSIBILITY OF The WLEDEE OF THE
OHIO PENITEsTIARY.
Office ofhe Attorney General.
COIur6us. Nay II. 1851.
MxssRs. A. P. STONE AND OTHERS:
DIRECTORS OHIo PENITENTIARI.
GENrs.--I have examined the question
submitted 10 me 10 verbal communica-
ton Of yesterdays whether the Warden
of the Penitentiary, Judge Buttles. is liza
bic in his official capacity for the amount
of the defaIcations of the late Clerk o.
that Institution, r. S. McEwen, and
while l do not End the question free from
doubt, vet have come to the conclusion
that ne is not so liable. The Clerk is an
officer appointed in accordance with the
law, of whom bond is required. By
the rules Of the prison made In aceor-
dance with the statute he is made the Fl
nancial assistant of tie Warden, and
while there could be no doubt Of the re-
sponsibiity OF the Warden for tho acts OF
a private assistant employed by himself,
l think it is clear be cannot be held liable
for the acts of a public officer who is
made his as sistant in a legal manner
To so hold would be to hold the head OF
every government department liable for
the acts of every subordinate officer or
Clerk under him, practice contrary to
all precedent. No man cIuld consent to
hold an Office wherein be was held TO be
the insurer of every subordinate officer,
the law making power might see fit to at
tach to his office. concluded from these
considerations that Clerk of the Pen
itentiary is within the scope Of his legal
duties, responsible for his own acts, and
that within that limit the Warden is moi
responsible therefor, except. perhaps. in
cases of gross neglec! of duty in his gen.
sral supervision OF the affairs ofthe prison
and its officers. Respectfully
:. D. KIMBALL.
ArroREEY GENERAL.
With thi, opinion l am content and so
notified the Directors, but as yetthey
have not signi6ed their willingness te
abide BY it and thus dispose of the mat
ter. In obedience to their written notice,
came to Columbus in November last,
to arrange this matter, and am now here
again, a distance Of six or seven hundred
miles from home; but the board were no
ready then, or are they ready now. to
arrange the matter. This delay, anc
the implication of being defsulter is ru
inous to me. paid into the Treasury
every dollar that came into my hands