, 1874-01-31

Now R1r. 0ngo,. not having sworn that Ito
had not parted with his Treasury balanco un-
witt viii til tlem IA 1T III boing void, tho States At
toruey tries, out OF tho expressions, :" state Of
tho Treasury" and "bala1ice in tho Tioaaury,h
"tho balance Of moneys" mud lis "account Of
moneys tn big hands.n by construction Of 5a1;; n;
tho money reported IN his actual possession, and
to nlako these expressions substitute for tho
oath required by law, and which hr. Gage did
not tako.
coNsrRuoT1vE PERJURY.
There ia no auch thing aB constructive per]ury,
or perjury by construction. Pcrjuryis swearing
falsely IN oath required by Inv, mud not for
swearing to something required for another l1lr-
but which i ght esnr oSe eoss ssn
tion Of this. ,statutc, all lint portion
swear that ho Ind not Loaned or 11sod
tho money, or had not loaned or uaed n It un'
lawfully, III, aud always waB taoloBH. Tho Log
islaturo, he contends, having demanded IN &C.
counting Of moneys received atld dsbnrsod, and
baanco verified by aflldayt, by that means ac-
tunlly obtained an oath that such accountant
to require him to Bwear TINT ho Ind not used.
loaned, or converted such money WAS pure sur
pil1sago.
Tlo tino for ono of Mr.. O'Haras monthly re-
ports has como round, aud doubtless le huls
made it. He has doubtloss stated dobiss, cred-
it's, and halaucos showing the bnlanco in tho
Treasury, and doubtless has nndo all accurate
showing Of tho moneys in his handH. VIII alr.
Roed contend that If, At tho mo'nont OF such re-
port. tho money was in tile responsible city
banks, lablo to sight checks, that on the pro-
jTious mercantile expressions eiven. Mr.. O'1iara
could 10 Indicted and convicted Of perjury with
ont a statute requiring him to swoar whether
These phases OF tho question illustrate the
identity claimed between the expressions ''on
hand," etc., and tho oath requiring, tint tho
money Should not bo used or converted; but
this, II at nil, is MI identity with requirement.
which has boen repealed. Ii, therefore, tho two
,ro smilar III moaning and one IL repealed, tho
otLor must DO alHo. Tho only oath now required
Is that possession has not beon passoa with TN
lamjthy.
BY this oath the Treasurer is not required to
hayo his money On hand. Therefore, tho unth
that thu money ts on llnnd-if to that EXPRESSION
the meaning claimed By Alr. Rcod 10 attachnblo
eau 10 assigned upon 1t, Surely tue Treasuror
ia not required to awear III u valid excuse for
parting with tho money that ho has not parted
with 1t uniawfully aud then in tho same affidavit
be required to swear tint he nul not parted with
1t all. What wns meant by thoao e1presBionB
was that tho Treasurer should report accurately
tho amount with which ho was cllargeablo, and,
II having 92,000,000, ho would swoar he was
cllatgoable with only 81 100000, no. ono would
doubt his criminal liability.
SECOND GROUND Fon ouAsli1Sa THE INDICTMENT.
But these proceedings should be quashel, be-
cause tho affidavit upon which tho perjury ia as-
signed whom examined will nut be found 70 stato
tiat tho moneys were OIL hnid, Or in the Troas-
ury, or anywhere. Therefore, tho Indictment
based upon facts not within tho aftidayit, III with
out evidence aud ought to be quastle1:
Tho following il the material portion Of the
account rendered:
cu1oAoo, De5. I, iaT3.-,-
~ Ms.'sy ci;y can1re',,r; ,or., Nm. h ,,.
cciycd and credited to tho several acconnta aud funds
during tho month Of November 1878, amounts ~
saaaco IN Treasury Nov i. 1879 500 4a
Then follow twenty-six ditiorant items Of
amounts belonging to that number Of
different funds, and received during
November 4,oaf'lo3'9a
..-, sa,2os, ,*s9.cs
Earrants "peid" during tho month Of
November 1878, and returned herewith. lib 11oAo
,.laneo In Treasury Dec. i, 1873 LIE, 40
D.A. oAaE, oitx G{,d,' Treasurer
The affidavit il that tho foregoing Btatomont
is fair, accurate ana fin statement
ot tho matters to which it relates and OF oil mon
eys in my hanla or which or any one for me
has received since my lust official account; and
that have not, directly or indirectly, usod,
suffered nny one to uso loan, invees, Or convert
to bis or their own use any Of tho public moneys
receivable or recoiyod by INC OF subject to my
warrant or control, and that have rendered q
In tits account and affidavit most plainly two
facts are sought for aud Btatel. First: Tho ac-
count-ourront Of tho month, which, with tho sum
unoxpended in tho beginning of 1t and the OK
pendituros, gives the condition Of tho Treasury
Or tho balance. Secondly: The affidavit that tile
Treasurer had in no way parted with such bal
anoo.
With the affidavit thus entire we admit that
the possession Of tle money ls accounted Tor,
aud the statement is most positive TINT tho
Treasurer has it all III his custody; but expuug-
ing entirely, as the ploader docs III this illdtct-
n,ent. tho entire oath as to the locus Of tho
money, the first part Of the affidavit contains no
statement by which that question eau DO dotor-
minod.
AFFIDAVIT VOID.
Tho affidavit, attaching to it the meaning the
pleador dues. ia void, boraubo, not being tho
palh prescribed by the statute, swearing to q
substituto was voluntary, and no othcor was au-
khorizod to administer 1t.
NEXT GROUND.
This affidavit was not required by Inv, and the
pficor was not authorized to administer it, la.
eauso time WAS fixed by the statute as the day
OH which it should have boeu nalo, aud 1t was
not lnado on that day, nor any other day, upon Il
proper requirement., although it might have peei
lawfully required OIL the dly it WIS nude.
Tho ohartor Of 1868, under which t4e Troasur,
Department. Of tho City Of Chicago waa organ
tied, 6oo +, provided:
"Thero shall bo appocntel by tue Mayor :, :,
tomo discreet an,l abe ascouaant, to 10 styled th'
City Comptroller who shuu DO chief Of tho Treasur,
Department."
sno. s. 'Tho Comptroller shall 10 charged will
and shall exercise general supervision over nil tt
picers Of The city charged in my with tlt
rcceipt, colloction or dlsburssmant Of the city rev
snnes aa "a tns collection md return of such rsscnue
sno. g.. :. lilo Tho co1nttrollcr] shall ro
quro Of MI officers III roecipt Of moneys that the,
shal submit reports thereof, With vouchers and re-
rolps therefor Into tho City Treasury weekly d
monthly, or AZ often shall ht to require h
Iat,o by my regulation that he may adopt" =.
SEQ. is. "Tlse Treasurer slal!, ut tho end Of eacl
md every month. ad oftencr II roqurol, render ~
lccount 10 tho Comptroller under oath." =.
Tho account on flo in this case purports tt
have heor nude on tho let daay Of December, aut
il filed in tho office OF the Comptroller OH thu
day and, after being thus made and filed, wa
sworn to on tho 9th day Of December. Tho Inv
!e, tint tho report sl'all 10 nlado end sworn t
"at t4y end Of each aud everH MONTH" There
boeu 1nado and flied without OATH, and thus tn
account bcca,no fnnotns oiliclo to 70 into tl