The evening herald. [volume] (Shenandoah, Pa.) 1891-1966, 1898-01-04
THE COURTS OPINION.
WHY the Township Directors Were X fused
"a New Trial.

WHY the Township Directors Were II fused
New Trial.
Upon request of many readers uf the HER.
AID the opinion of Judge Bechtel in denying
the motion for a new trial made in behalf of
p. j. Ferguson Thomas f Flanagan, Patrick
j. Noonc. Martin f. McLain aud John
Donlin, School Directors of West Mahanoy
I township, is published as fully as space will
permit. II is as follows:
Ihe reasons assigned and urged IN sup
port of the motion are practically the
-ame as were presented to the court upon
the motion to quash The motion to
quash was deued on the 18th of Now
1897, rs per order filed upon that day by
Judge Koch, to which action the defend
ants have excepted and bill has been
sealed. In view of this state Of the record
we can hardly be expected to consider the
anne questions or in any way to review the
action as found in order of Judge Koch
Beside the action of the Jury and trial Judge
. dispUses Of all the counts in the Indictment
save the 29th, and therefore removes the
greater portion of the reasons assigned in
support of the motion to qIHtsh We will
therefore consider briefly the allegation, that
the failure to attach ,he word foreman to
/ the name of Benz. Kaufman, is fatal The
/ Indictment Is not u printed form, hut one
specially prepared, hence the endorsement is
not printed hut written and the word fore
man is omitted We regard this as of form
aud clearly amenduhlr, aud an oI.,er has
been hled directing an ameu4meutlu this re
respect, and also Is to the swearing of the
. Grand Jury, 50 as to make the record show
. the truth as to the appointment of Kaufman
rs foreman and the form Of oath admins
tered and how il was administered" "
After iting number OF authorities to sus.
tam the position he takes above as to the
r.Pht OF the court to amend the record. Judge
. bechtel says: Under language of sections
l91 and 49S Wharf. Grim. Law and the au-
thOrltles referred to il is doubtful whether
the word foreman" is necessary ut all But
II 1t Is, there can be no doubt of the right of
the court to require its clerk to disclose the
truth IN the record by showing he was ap-
pointed foreman, aud sworn with the other
Grand Jurors, aud the character of oath adj
ministercd to him. The method of swearing
the foreman whether separately or with the
Others appears to be a matter of practice
In our judgment 1t is not so much the
order or method as the character of uhliga-
on placed upon the cOnsCieuce IT the
oath be administered to the foreman fir,t.and
as foreman and then the others be sworn To
obs rye tie same oath, they haue the same
obligation imposed upon their conscience that
would be imposed if all the Grand Jurors be
sworn together, and have the same oath
read TO them II does not therefore seem to
be OF much consequence whether or not the
foreman was separately sworn. since he was
placed under the same sacred obligation to
perform his duty as were his fellows. and
each and all had the same obligation imposed
upon the conscience"
/ Judge BeChtel then leaves the question as
to the amendment of the record and takes
| up the objection to the 29th count in the
Indictment The count, he says, certainly
charges crime, and while il speaks of the
defendants as being the Board of School
/ Directors y when in fact the Board consisted
OF SIX members, this cannot be ground on
arrest of judgment The omission of the
W'rd members Of after the word being"
/ 10 moi fatal. 1t is sufficient to charge them
as school Directors and doing so charges them
in the official capacity. There can be no
/ question, however about the right to correct
/ IL II 1t be necessary under our Procedure Act,
/ As the sixth member had died and another
who had no pant in the matter charged been
selected in his stead, the language above
given IS pretty close to accuracy as the MEM
! berS OF the Board. The evidence shows the
money was paid and each director received
his share before the order was issued, and
tins Is urged in arrest of Judgment. But it
also shows that the order was issued and
made payable to the directors and these five
defendants endorsed it. The treasurer pre-
sented it and obtained credit for il in his
settlement. Thus the very thing charged is
established, the district is wrongfully re-
qured to pay what it does not owe, and
what the testimony shows the defendants
knew it did not owe and all were legally
bound to know it did not owe. The question
as to whether this payment was fraudulent
and corrupt was for the jury, and by their
verdict they find it to be wilful, fraudulent
and corrupt as ii is charged and surely this
would make out the crime of misdemeanor
in office"
There appears to be but one question left.
Defendants contend that no evidence was
a., Il. Al. Al.
which as directors they were required to
take. We are referred to the Act of 1895
p. l. 2S4, but this is not the act that requires
the taking of the oath, the power to admins
ter the oath is conferred upon the directors
Secretary and President by this act, to avoid
the necessity of calling in an officer The
Act of 1891, Purdon 34S, pl 94, requires the
oath to be taken by all directors before enter
ing upon their duties as such, and CODY
thereof snail be entered upon the minutes of
the board. While the Commonwealth claim
they did show by the minutes that the oath
was of record III the minutes, yet as the book
IS not now before us we will consider it as
though it had been wholly omitted
The situation then is this, the act imposed
upon defendants the duty of taking the cath
and noting it in the minutes Without per.
forming this duty they take upon them
selves the office of director, take charge of
the school property of the schools, appoint
ltdCutIS, ltNy anu cause taxes 10 be collected,
and according to the verdict, illegally and
traudulently appropriate portion thereof to
their own use. When called upon to answer
for such act, they interpose as plea, their
own negligence their alleged failure TO per
form the very first duty required of them
In effect they seek to deny their official ex-
istence, when called upon to answer for a
misappropriation of the funds, hut assert it
for all other purposes. Surely they cannot
be heard to excuse themselves upon such
ground, hence it is unmpsrtant whether the
minutes show the taking of the oath. or
whether it was in point of the fact taken, in
either event they are required to answer as
directors for their acts. While they might
be ousted for this neglect of duty in proper
proceeding, they cannot oust themselves
when it suits their convenience to do so.
The motion is denied and arrest of judg-
ment refused"
TO have good health, medicine is neces-
spt t.v Ac faun;Ix, ro,,ol.. n