The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1893-02-17
HART PAYS OVER.
The State Receives the
Money Held Out.
TO THE IMPROVEMENT FUND.
The Question Asked by the Attorney
General Answered by Judge
Levy's Decision.

The suit brought by Attorney General
Hart against the Board Of State HarDor
Commissioners to determine into which
fund he should pay certain money held by
him W as decided yesterday by Judge Levy,
who found that the S17.S47 IA then in the
hands of Attorney General Hart be paid
into the State treasury TO the credit of tie
improvement fund of the state Board of
Harbor Commissioners.
w. Ii. l.. Barnes appeared as attorney for
Plaintiff Hart, Attorneys Barron and Bolton
for State Controller Colgan, and +. S.
Stratton represented the Harbor Commits
sion.
BY permission. Attorney General Hart
opened the proceedings by a statement to
the court of the case, and he announced
that all he wanted was fair and impartial
inquiry.
His statement was that in March, 1888,
law was passed by the Legislature for the
employment of wharfngers nd collectors
OF harbor dues. Afterward it was discov-
cred that they had not paid over the
moneys collected by then. The secretary
OF the board kept account Of the money so
collected and his books showed def
cheney of S23.036, but no suits were brought
for the recovery Of this money.
de did not accuse any OF the commission
ers with having taken any of the money,
but held that as they had not counted the
cash daily they were therefore responsible
for the deficiency.
lie then read the legislative act giving the
Attorney General pOwer to compromise
payments Of this deficit at his own diScre-
ton, and claimed that he had power TO COM
promise with the commissioners. He said
he had been unable for lack of time to in
yestigate the matter, and had said that he
would accept the opinion Of A. r. Cotton.
who said that there was doubt as to the
action the Attorney General would take.
lie had then decided TO make settlement.
The commissioners met but came to no de-
clsiOn In the matter. and he then decided TO
exercise his prerOgatiye and dismiss the
case. He concluded that the Legislature
had right to decide that the deficiency
should be collected, not as embeZzled money
but as money due from the DOndsmen OF the
commissioners.
On August 80. 1891, he settled the claim
against Commissioner Phillips on payment
of S7725. On August /, 1891, he accepted
from L. j. Bergin S661 SO for the other de-
PENDANT (Blandng). which left but one, t.
Nj. QuackeDDush. To be settled with, who
subsequently gave check Tor Sl120 to At
torney Langhorne.
Continuing, General Hart said he had not
used a cent Of the money. but had kept it
locked up IN his safe until advised by Mr..
Barnes to deposit 1t with the Nevada Bank,
the certificate for which deposit he then
held subject TO the courts decision as 10
what fund he was 10 pay it into.
After Attorney Bolton had read the law
governing the State Controller Judge Levy
asked if the question was regarding fact and
amount.
Mr.. Bolton contended that the money
should be paid into the general fund. Judge
Levy said that In that case there would have
10 be proof as to the amount before the
court could give judgment.
Barnes said the statement of Hart could
be received as testimony. but the court held
that much of the statement was irree-
want and, therefore, could not be accepted
as evidence.
Mr.. Hart, after reading his letter to the
Harbor Commissioners which was princi-
pally made up OF figures taken from the
commissioners cashbook, said that the
books dld not show that any money had
been sent TO the State Treasurer from No
vember 80 10 December 6. while the books
of Wells, Fargo & Co. show that that COM
pany had carried to Sacramento S12,953
He found that there was deficiency of only
$4752 II.
j. J. Keegan testified that he had been
secretary of the Harbor Commissioners
since March IS, 1883. He identified book
as the eRshbook Of the commission, but was
Unable tU say positively whether the
amounts entered therein had come into his
possession or not. Ii said that the comm mis-
sioners claimed that the money paid to
Attorney General Hart should be paid to
the fund Of the commission.
Mr.. Barnes said his client held certain
moneys belonging to the State, and all he
asked was for the court TO determine into
what fund he should pay the money AS 10
the amounts owed by the defendants, that
question was not at issue. Should he pay
the money to the general fund or to that of
the commission? II his client paid the
money to the general fund, then the COM
mission would have grounds for action
against him. custodian of money who
makes mistake in paying it out is respon-
sible tor the amount.
Attorney Stratton said it was the duty of
the AttoTney-G General TO have paid the
money into the State treasury.
The Controller wanted finding as to the
amount, but Judge Levy SAID he would first
hear him on the question of whether the
money should be paid into the general fund
or the improvement fund.
Mr.. Barnes said that next Monday the
Legislature would look in to the matter.
Judge Levy decided that the money
should be paid Into the State treasury to
60 10 the credit OF the harbor improvement
fund. because the embeZZled money was COL
lected for tolls, ETC., and he did not think it
the intention Of the Legislature TO divert
any money collected for harbor dues to any
other fund.