Omaha daily bee., 1897-10-16
HOLCOMB IS RESPONSIBLE
Attorneys for Defense Contend that Bartley's 8
Bond Was Illegally Approved.
BoNDSNEN THUS RELIEVED OF LIABILITY
when the Governor Failed to Approve
the Bond on january the
oGce of Treasurer
Became Vacant.

It is now for Judge Powell to determine
whether Governor Holcomb violated the stat
utes OF the state OF Neb aska when he ap-
proved the bond Of State Treasurer Bdrtey
on January 8, 1896 four days after the date
on which BARLEY entered his Office and on
which 1t Is contended he could only legally
approve the bond, and also, whether Governor
Holcomb, by so Illegally acting, rendered the
bond invalid and thus released the bonds
men from all responsibility for the half mill
lion dollars dedication that existed In the
state treasury when BARLEY vacated 1t last
January, II Judge Powell answers these
questions of law in the affirmative the state
cannot recover the amount OF the defalcation
on the bond. So important is this stage OF
the trial.
These questions have been argued for three
days, and the discussion was finally brought
to close late yesterday afternoon. Judge
Powell announced that he would not render
decision until all the evidence was in, so
that clear record might be made Of the cdse
for review by the supreme court, to which
tribunal 1t will be carried, whichever Sarty
wins Thus, when the case Is taken up again
on next Monday morning, the introduction of
testimony will be resumed. The defendants
will commence at a point where they left off
when the argument of the Law rgestions was
commenced. They try. to show by
witnesses that Governor Hollomb refused to
approve the bond on January 8, 1895, when
the state objected on the grounds that it was
1mmaterial whether or not the approval OF
the bond occurred on that day. This at once
brought the questions discussed during the
past three days to the front. When the
gument was completed yeste day afternoon
Judge Powell said that ne would allow the
defendants to show what occurred in relation
nd
Throughout the trial so far the defendants
have taken the position that If Governor IIol-
com performed the duty laid down for
him by the statutes the suit on trial could
never have been Instituted. This stand has
been advanced most strenuOusly during ths
past three days du ing the arguments. Yes
terday afternoon 1t was presented succintly
to the court by General Gown in state
ment which he had written beforehand in
order that he might not be nisquoted. This
statement arraigned Governor Hocomb for
violating the plain provisions of the statutes
in allowing Bartley to enter upon his second
term of office.
In the outset General Gown stated that
when Governor HClcomb failed to approve
Bartley's bcrd on January g. 1895, Bartley
lost every right and privilege to the office of
state treasurer he had acquired by his cleo
tion. Thus the Office became vacant ana
Governor lHOlcOmb had no authority to ap-
prove his bond on January .. In approving
1T he violated the law. General Gown then
continued:
''By ignoring the plain provisions of the
statutes Governor Holcomb permitted Bart
ley to occupy the office of state treasurer
without the shadow of right or title for two
years Had not Governor Holcomb approved
the bond, when he had no authority to do So
this case would not be in court
but worse than this followed a conse-
quence of ignoring these statutes. The law
provides that when a treasurer succeeds
himself his bond shall not be approved until
he has produced and fully accounted for ull
funds and property that should Be in his
hands
NEGLECTS HIS DUTY.
"The state claims that BARLEY should have
had at the close of his first term in cash.
bear in mind in cash, the sum of $685., ,O6S. 70.
1t was the duty of the governor to that
this cash was produced, and again bear in
mind produced, accounted for The
methcd was simple, the money, cash could
legally be but in two places state deposit
tories and in the state treasury; the money
lawfully in the state repositories need not be
produced, but the money in the state treas
ury was required to be produced, and it was
the duty of the governor to examine the
same and know that ii was all there. There
was in depository banks $i6l $40. 76. This
left 1896, ,5lS99 in cash which the treasurer
wss bound under the law to produce, and
which the governor was bound to see and
1t could not be lawfully in any other place
than the state treasury.
Now the startling evidence is given that
of the $496,5lS99 which BARLEY was bound
to produce from the state treasury, he did
not ard could not produce but $47,000OO; he
had no more. There was then $449 51S99 that
BARLEY was bound to produce and which
the governor was bound to have produced
that BARLEY did not have and could not pro
duce, thus showing a def | alton Ct $l49 SIS
at the end Of his first term.
"But still worse is to come. When this
startling evidence was introduced the attOr
ney general made an attempt to escape Tho
consequences. and how? BY endeavoring tC
show that BARLEY had Illegally disposed o.
the money. The question asked Bart
ley's deputy whether ii was not a fact tina
BARLEY had certificates of deposit repre-
sentlng state funds in banks other thar
state repositories and 1t developed that h,
had some and some open accounts but how
much the deputy did not know. Here, then
was the proof positive showing that Bartle!
had before January g. 1896 illegally disposed
of state funds. and this Illegal disposition
is brought out by the attorney general tt
deny defalcation of the first term.
PROVISIONS OF LAW.
Section of the depository law provides
that the taking of any money out of thu
vaults of the treasury department for an!
other purpose than the payment of warrant
legally issued OF for the purpose of deposit
ing the same in banks selected depOs
itories under the provisions of the act is
felony subjecting the treasurer to punish
ment In the state penitentiary for the tern
OF not more than two years, or to Il fin
not exceeding $4,000.
IF then any part Of the shortage O
S449 .5lS.99 was attempted to be accounte
for by BARLEY at the close of his first tern
as indicated by the question of the attorne
general by certificates of deposit in bank
other than state repositories such attemp
was only producing further evidence of tn
embezZlement of the money; and not onl
that, but producing positive testimony tina
the treasurer was then guilty of the felon
prescribed by the statute. These certificate
of deposit were proofs positive that section
OF the act haQ been violated, ana that tn
treasurer at that time was subject to tn
penalty therein provided, Yet notwithstand
ing all this the bond bears the endorsement
Approved this 9th day of January, 1S9,
Silas A. Holcomb, Governor
And yet in language by no means choc
the bondsmen are denounced by the attorne