, 1874-01-31
that Of not paying ovor city money In hia pos
HcsBion.

that Of not paying ovor city n1onoy In hhia pos
TIE ALLEGATIONS.
tho inllotmout for not pnylnE over nllegcs
substantially tint OH tho 15ih day Of Dccomgor.
lsIs, David a: nag9 vas TrSasrer Of ai,e 4ag 0!ay
years ai.d moro prior 70 that tlnte Tint ~
ouch Tleasurer l,o Ind received s607, ,703.68;
tint tllH BUM WAS fund established by Inv for
public prrpoHo1 tllat said ongo, as Treasurer,
day Of December. 1879, his term of oli'co OK
pirctl that Mr.. Daniel O'IIara is tho aucconsor
Of Nlr. Gage Oh City Treasurer; TINT on Tho 9th
day Of January, 1874, Mr. o'Hara4 ~ Treasurer:
the said aum Of s5o7. .7o5.5s, but lint a1r. Gage
did uhlawfuliy fail to my ovor tho samo.
NO IMPROPER APPROXIMATION CHARGED.
There is no allegation iii tho indictment tllat
MI qago has improperly appropriated thIs ba, 11o
Of it. Tho Indictment In silent with regard TO
tho intontion aud motives Of Alr: Gago, put
stops with tho assertion OF tho independent
financial fact tint Mr.. Gage has failed ar9n atn tug
baloneo said to be In Lis haudH.
ACT AND INTENTION.
Tho fundamental oiauss OF tho criminal coue
OF 1iliuoIs, aud al other criminal codes doilnos
crime to bo tho union and joint operation OF net
and intention. Tlloro eau 30 no felony Withont a
felonlous intention, Tho allegation TINT tic do
fondant uulawrulIy refused 10 pay oVorl means
nothing moro than that ho refuses, contrary TO
tho act requiring him to pny over, and does not
euro this radical dofoot tn tho indictment. It
stantla donudod of any criminal purpose. We
shall hand prccodonts to tho Court on this point.
It is 4 fatal defect.
Tho statutes Of Illinois, since Chicago first be-
came city, or indeed for the last third Of
| tury, arc searched in win for any law which
! makes tho 1nero neglect or refusal OF public
officer to pay over public money, without asorlD"
| It la found, upon moro remote examination,
| thnt in July, 1883, criminal colo was adopted
| by tho Gcnoral AsBombly Of Illinois, md that
state's Attorney Ina boon driven to fnug Lilo ill.,
! dlctmout against Mr. Gage; which section Ia 10
| follows:
SEC, g7 If my officer person who now 10, erc-
after may be- c!easod by law, to collect, dlsburae, re-
cptvc safely Keep my money or moneys reyeuc or
revenues, belonging TO this snte, to tito achoolf1na
of this tatc, 10 tho schocl.fund Of my county town.
p!ke, or rairosI.f.,n Of his State, any county
thereof, 10 tile President aud Directors Of the State
Dank Or to auy fund for tho Improvement OF ay pub
Lie roa riyor, creek or other w.tcrcourso bordering
on within ILLS statc or to any Other fund now be-
ing Or hereafter to 10 established by Inv for rbliH
n,onoys wnrral.ta blls, notes, aud ,ordcra which
any sucl. elliecr Or l'oraons should rccciye for
anai coact or s@l recess or sall receive for safe
Keeping, belonging th!a State 20 my county Of tug
or to sy ss sa a ~ as w9q v fS @
and demand duly made by tho successor Or nl,ccessors
of such officer or person IN Office, or by te olcer or
ti.eir utnrney or agcnt duly authorized III writing,
sgucd a, acknowledged, ii fach denand b. prncttcu-
thereof lie p,ntv,s by confinement In t,c pcniscn-
nry fnr my ter'n not rss than ono ~ yea' nor 'noFs
! than tl01 yeRrH.
TIE LAM Is 1NArp11cAntE.
Wc dany TINT this Law OF 1873 has any applica-
tion whatsoever to 5lr. Gages case. We assert
thA; 1t was not intended to apply to City Treas.
urers, and does not upply to them, but that Y
war Designed entireyto to protect State funds, and
tia! any indictment based upon 1t against city
Officials muat full.
THE LAW OF 1868.
hs preliminary to the discussion Of this queH-
| ti0t it may be oi3aoryed that IL Mr.. Gage, aa
Tre.,surcr IF tho City of Chicago. has committed
MI olfcnso n.ainht tliu public morals, and there
wero 10 other 'nw, Hayo the one invoked by the
States Attorney. rather than leave tho public
rcmediless, the judicial mind might loan towards
the most comprehensive construction Of the
statute in question.
But it will be found to bo not ono Of the least
remarkable circunBtances III these proceedings
against Air. Gage, TINT particular and specific
preaonting complete plan and remedy in rela
ton to tho dutios OF City rronsurer. llns bee,
passed over, and q genaraI proviaton invoked
having laa it viii fpp0"r' no application" to 'u
II tie Lcgislatufe OF Illinois. i'll 1863, passo
artatute which iB found to embrace compet
System in relation to tho duties Of Cit
Treasurer, with all tho details necessary Il
curry it into active operation, forming
complete and detailed scheme upon that subject
and it has beon found upon examination Of th
facts in Mr.. Cages case, that All indictment eau
not fur substantial reaHona bo sustained agains
linn Under tlat Inv, thon, haying i'll view tlsos
principles OF justicc and fair treatment whicl
every eitizon may have occasion to involo n
some poriod during hiH lifo, It gives riao to
strong presumption tliat public Interests did no
require TINT nny indictment ut oil should b
found against Atr. Gage.
The particular aud detailed scheme Of 1868 t
which I refcr, with its anlsndnonts is as fol
| laws:
Tho Treasurer and City Collector, and nj, receiver
Of city money. nra hereby rcl!rnl 10 keep sufel,
without loaning or uBinH 'nles1 differently lirectc
by ordinance or resolution Of thu Common Cuuncl
Rll tlae city public moneys collected by them, q
otherwise ut any limo pluced III their custody M
posul, until tho paid over directed BY til
proper ocer warrant law Or order Of the corposntto
to 10 transferred pa1 out and to make all Payment
md transfers promptly whom thereto required by
law order OF said corporation, under my rcgula
or u those CONNECTED with t!onn he collection aa
4eeing dsbursing Of said city revenues shall col
bis or @ a se Il any I o
erty or merchandise shall loan with or without ii
terest, uness differently directed by ordinance
. resolution Of the Con,mon Council, my portion
said city moneys intrNkted TO him Or them for saf
keeping, disbursement, payment transfer or for un
other purpose, every Hch net shull ho deemed and al
judged to 10 iii rnhczxcment Of so much Of the sai
! moneys shall bo thus taken, converted, iuveBtes
used or laal'ed, which Is hereby dceared tslon!
advising or participating in said act, OR being part
tloreto, shall, upon eouricon before my court
= imprisonment for u term Of not less than si1
months nor more than Yen to yoars In the Psnttei
ary Of this ssate; aud also bs ned equal to The su
n INTEREST ON DErnsITR