The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1888-04-14
INSANE HOSPITAL TRUSTEES.
Arguments in Answer and Demurrer
TO Complaint to Remove Them.
Some Days Will Elapse Before Decision Can
Be Reached-A Crossing Of Claims for
Life Insurance. Money.

The suits brought on behalf OF the State by
Attorney general Kitchener for the removal
from Office Of Thomas Harrison. Philip Gapen
and b. Fl. 3urrell, the Insane Hospital trus-
tees, on account Of violations Of the law govern
ing their trust. and for mismanaeement and ex-
travagance, came up before the full bench OF
the Superior Court yesterday morning on the
defendants demurrers and answers to the vari-
Gus paragraphs in the complaint The original
complaint contained twenty-five separate para
graphs, and the trustees demurred to the most
Of the allegations. To soms they filed answers
eettiBg forth their reasons for the alleged viola
tions of law, and to the others general denials
only were submitted. The case was before
Judge Howe, but, considering its Importance.
he called in his associates on the bench
to sit with him. Each aide las ssveral attorneys,
Harrison and Wesner. of Lebanon representing
DR.. Harrison; Henry Span and John w Kern,
appearing for Mr.. Gapen. and Herod & Herod
for Mr.. BurrsIl. Tbs State appears through
Attorney-gensral Kitchener John T. Dye, John
L. Grifiths, and Oliver T. Morton. William Dud-
ley Foulke assists them on behalf of the Indiana
Civii-service Association.
Messrs. Span, Herod and Wesner spoke yes
terday morning. Their argument was to the
effect thas 80 FAR majority of the more impor-
tant paragraphs in the complaint was concerned
there not sufficient cause for action. At
torney gen@ral Kitchener occupied nearly the
whole OF the afternoon. and in regard TO the first
paragraph he said Harrison was drawing sal
AIRY Of 81, 900 per year, whsn he was entitled 10
but $500. The language OF tae statute was plain.
1t was claimed In the defendants demurrer that
Asylum board, but was member of the boards
OF the other institutions; in other words,
that he held four Offices and was en-
eoud tour ush s.asps D"sl s6e
statute did not permit any man TO hold more
than one lucrative Office at time. An officer
might hold Office and attend to other duties,
however. For instance, the Attoruey.general.
OK ofRcio member of the State Board of Equal
1zation. was not entitled TO any pay for his serv
ices as such. II DIR. Harrison drew 81 900 annu-.
ally, instead Of 5000. he guilty of violating,
not only the civil. but the criminal law of the
State. and therefore subject to removal. The
act Of overdra winR salary was one for which
not only DR.. Harrison, but his bopdsmen were
liable. and certainly Substsntiated the charge
thar he had not faithfully performed the duty
OF his Office IN accordance with the demand of
the law.
Passing to the paragraph in which Gapen Is
charged with drawing salary during year he
was absent, attending TO private business in the
State or Arkansas, and during which time he
attended but one meeting of the board, the AT.
tornsy general said that, il this trustee neglected
MS duty for one year, he could not have faith
fully performed it. and ought 10 be removed. IL
he failed 70 perform his duty and drew his sal
AIRY, he should be removed. A member of the
board was not allowss 70 appoint
deputy, for the law prsscribes certain duties
which he himself shall perform monthly. The
defsndant's attorneys claimed that Mr. Gapvn
received bis salary through the Auditor of State
and II he was not entitled to it the Auditor
should not have drawn the warrant. Tint de-
tense, the Attorney general said, could not be
maintained, because the statute said money
IN coEpec ton with these benevolent institutions
should be paid out By the Auditor of State ex
cept On orders signed by the president of the
benevolent boards. The Law made it impera-
tive for the Auditor to issue the warrant il the
president of these boards drew the order.
The thirteenth paragraph, to which answer
was filed. charges the hospital trustees with
allowing boilers of an inferior quality TO be put
IN the building. and by so doing endangerine
the lives of patients. On account of these de-
fective boilers it is charged that the State has
oeen constantly expeDding money IN repairs 60
as TO make them fit for The Defendants
IN their answer, admitted that the boilers not
OF the quality OF iron originally contracted for,
but they claim that the matter of inspecting and
receiving the boilers was left to DIR STACEY. the
engineer and that if any mistake was made be
was responsible for it. The Attorney-general
said they conld not relieve themselves of the re-
sponsiollity for the purchase of the boilers by
claiming thar they had BAD advice. On this
point he cited several authorities who have held
that when an officer failed TO perform his duty
he could not hide behind some one else
The twenty-fourth paragraph, to which the
defendants demurred, charges the trustees
with not making reports in accordance with the
law, The paragraph was based on Section 2I16
of the Revised Statutes. The Attorney-general
aid the trustees haze incurred certain indebted
ness, and st the end of the fiscal year state
ment of the fact was made in the report
The language of the statute mandatory with
reference TO making full report regarding the
condition of the institution.
The twentieth paragraph. in which it is oil
legged that the trustees employed attorneys at the
expense of the State TO defend them before the
legislative investigating committee,
swered by the defendants claiming that the
charge against them affected the reputation of
the Institution, and that they therefore had a
right to use the States money in employing at
torneys. The AEtorney-general said there was
no statute authorizing any officer to pay his at
torneys out of the public funds. The legal
services ut issue were rendered to the trustees
PENDANT In the Investigation. The trustees were
held by the same law that governed the action
of guardian administrators. In case charges
were brought against one. affecting his manage
ment of the trust, he had TO right to use the
money of the trust to pay his attorneys fees.
The Attorney general concluded his argument
by saying that defendants answer to the TWEEN
ty-second paragraph, charging them with buying
goods from D. p. Erwin 81 CO., and w. B. Bur
ford credit, admits the truthfulness of the
charge; but it 10 urged Ia defense that the
purchases were made on credit because the APP
preparation could not then DO drawn upon. The
ATTORNEY general said that according to Section
II of the Revised Statutes, it was unlawful for
any officer to contract debt against the State,
and the section following such an act
penal offenss.
William d. Foulke followed the Attorney
ksuoE6A III al AERuEeHb toucnlpE upon inc
nature of the action. and also in answer to the
demurrer to some of the paragraphs. The
ton. he held. WAS the legal equivalent of i'm
peachment and the Defendants, therefore, were
not entitled TO q trial ey ju-y. Judges Taylor
and Howe expressed their belief that the case
was on Information, and the defendants. there
fore, entitled co be tried by jurors. and by
agreement arsamsnt on that phase of the
was postponed. Messrs. Dys and Morton COM
pleted the argument In very brief speeches.
The judges requested each side to present
written synopsis of its answers and demurrers
next Tuesday. It will probably be week or
more before the case is passed upon.