, 1874-11-18
Judge Murphy Entersains the Motion
10 Quasll the Indictment,
He Listens to Elaborate Argu-
ments Of Counsel.
And Then Decides the Indictment
Must Stand.
He Sees No Reason for Interfering with
Judge Rogers Action.


~aS S~oN'~
Trial Set for Tuesday.
sp,c;a, Dtsua,ch to The Chfeaoa Tribune.
WAuKEoAS Nov, 17.-Tho Cncuit Court room
was crowded this morning with people anx'oua
10 learn tho decision Of Judge Murphy upon the
ouestiun whether ho would allow tho plox Of not
ruIlsv, In tic cAao Of Dnvid A. Cage. to be With
drawn, aud rnosIon en!arad to quahh the tndlot-
h,aut- .
MI. DEXTER
esltea leave to elaborate point, mentioned gcn-
orally BY Mr.. suett Monday, Which, by tho divis
ion OF labor, Ind boon particularly assigned to
Lin.
The Court answered that ho would hear mint
lc had to present.
Mr. Doxter went on to aay that tho iniiot-
mont alleged TINT "David A. Gage. M auch City
Treasurer, did then aud thcto, on tho day and
yoar aforesaid unlawfuliy fall to pay over and
delivor to asid Daniel 0'Ilata Oh such T1oasurer
and succcaaor." This, taken with tic law OF
1883. upon which the Indictment WAS baeed,
showed tho Indictment to DO for falling to pay
ovor." Tho Court would obaervo that City
Treasurcrs woro not ino1ude1 In the law OF 1888.
It was somewhat remarkable that the Legi5a-
ture, In 1868, had taken up tho whole question
Of tho duties Of officers connected Hith Tho City
OF Chicago, aud published book on tho sub'
joct, fixing penalties for tho non-performance Of
duties, e1,arging tho romodiea and punishment
for ctnbczzlamene, porYersity, or maltcasance.
Thnt fact, coupled With tho fact thnt ut tho time
tho act OF 1888 was passed. there mas not a city
In Illinois, would induce tho judicial mind to be-
love that tho act Of 1888 had no application to
m officer who MAS djBcharging blu duties under
tho law Of 1865 Tho City Treasurer waB
not found thoro by specific enumeration; only
by construction. II It wero replied tint shs lou
guago, "any other fund now In being or here
after to b. established by law for public pur~
posos," was broad enough to cover tho City
Treasury, he would roply that it was broad
enough to include all tho other ofIlcors onumnr-
ated in the Law OF 1880.
WAS ANY FUND ESTABLISHED By 1Aw7
Tho States Attorney alleged that Sb0S, 900.
Which It was charged the defendant had "failod
to pay over" WIS established by law. The funds
we're made up Of rents, wharing interests. etc.
These were not established by Inv. He took the
fair meaning OF ia fund established by lnw" to
be M appropriation for tho Ponitoutlary
OF for IN aayfum. At any rata, the
statute could not establish q fund over
which 1t had no control. Tho rents, oto., col.
looted by The City Of Chicago were no moro
'tfuuda established by Inv than tho rents col
lected by railroad corporation. Tho iudot-:
ment. therefore, was bad ,t in hat IT covered
fund established by law. III addition, tho Leg.
tslature had confessed that the law OF 1888 did
not cover tha case, inasuluch aa they amended it,
The amendment becoming operative OH tho 1sl
af Jnly last. Mr.. Dexter thon referred to tho
question Of
contendIng. as before Judge Rogers. that, II the
Ian of 1855 did include tie OF tue City T. cas-.
uteF. 1t waA repealed by the act Of 1865. Judge
Rogers, because there wAH no complete nuthorlty
e1cept ono where the matter was collateral, had
decided against him; but since that time tho
supreses Court ot ths ststs haa Determined ne
peal. Ha understood tho embarrassment lllnto1
1T bg the Court Monday about Judicial
courtesy, but thought 1t had ite bouuds+---tImt.
II, subsequent to tho determination By Judge
Rogers OF tho motion to guash, the Supreme
Court had rendered d decision Which del,voeod
his cliont, neither tho Court nor tho States At
torney ought to consent TO roecod with prose-
cuton Involving the personal liberty Of tho ci'
aon. He did not wiah his client to be sent to
The Pen.tcutiary upon point or ot'1uotto Lis
position on tim subject Of repent was that, By q
cumpleto revision contained in tue lar OF 1868.
tho repeal Of the Law OF 1853 uas workea--that
specific aud detailed statute In relation to u
particular subject worked repeal Of tho pro-
7isions of a general law relating to the s1me
subject. It could not possibly have been tho in
tcntiou Of tho Legislature. after providing tho
echcmo Of 1863. that the law Of 1888 should bo
applicable 10 City Traasuyers This woykeda re.
peal by Substitution; another principle Of repeal
was
RrpuaSAScY-
where the prorisiunH OF l. later Law were incon-
6isteut with those Of former law. uu thon
proceeded to show that t!.o'two lava wore iucou.
Hiatont with each othor alnco they affixed differ
cut penalties for tho aasno o1ense. liz shen
fu1fn1 t1n 6nrtHfDu tlA Of Et1fVAr
the Tai1l Nat,opnl BaM'l, and snia taat, by thc
law OF that case. the Court, tn sustaining this
Indictment would ororlule tho Supreme Court
Of Illinois. Mr. Dexter thon quoted the ncwly-
discovered provision lu tue charter. imposing q
penalty Of 9100 for failing to hand over "ithin
Ten dayB a!l books papers. property, etc., claim
Ing that 1t YVES the only law specifically Applicable
to hid client; mud lie naked the StaIo'a Attorney
II it was just to yield to popular clamor, and
iudtt man under law dug up from The toml
Of tue Capuleta, wllan, unaor tho PROVISIONS Of .
complete law designed to coVor th6 case in hand
Tho Indictment could not De SUSTAINED.
a point which ho considered as conclusive or
tho ;oint Of repugnancy was that, under tho Low
OF 1888: there was but ona excuse Tor not paying
oyor, unavoidable losa; while the law oi1s63 pro
viied thai tAo funds OF tic city might be loanat
not propostorous THAT man should be denloe
his o1cuse2 Tho law Of 1883 provided no otle
excnsa excopt unavoidable loss or necl'
with tie tsrua Of tbo law of 1895 that was
sufficient e1cuno, aud in this the law Of 1868 per
mlttod what tic law Of 1883 forbade: Hence
man might bo gully undar the law u 1888, and
not guilty under that Of 1868; Therefore the ars
was reppguaut to the aeconl.
MR. SWETT =.
seasasmed his assertion Of Monday that there
was no such oifense, under ths common law, al
..sfaaling to pay oyer;" tuat wherever tlere VA
iability. special statute WAS provided, aut
Hhero sucn atstates existed, oh'clal
Mero Indicted uAdor them, and not upot
Me requirements OF Tho common law. 11o fonnt
90 aucl statute III this Btats. a.sd requested alr
Iaoed to poiut out requirement. Of tho comno,
law upon the subject.
I'LL. REED
theu made bis answer lie said the discussion
had excluded to tue nlerits OF tAn case-has
laken tho direction It would Lays II the plea la,
boon withdrawn. He would be yery brief as Il