Omaha daily bee., 1903-01-08

prolong this opinion. They are not meri-
t%orious. IL Is, therefore, recommended that
the Judgment of the district court be af-
hrmed.
Judge HOIcOmB's Opinion.
Judge Holcomb wrote a twenty-four-page
decision, concurring and explaining reasons
for participating IN the case. He said:
Until the commencement OF the Septem-
Der term of court1 had hoped the case at
bar could be decided without participation
on my part in the decision rendered. MY
from the fact that as governor Of the
state l formally authorized the. attorney
eeeeSi1Rs 70 his iudgme ans mISbt ap 5YF : of
which seemed advisable and required in
order that the state should recover Its dues
its former state treasurer, Joseph s.. Bart
ley, which was discovered to exist at the
time OF the expiration of bis term OF ONCE
as treasurer, and was also cognizant OF
the institution Of the present action against
the defendants herein. under, the geaeral
state thus given the attorney general.
Since II has become apparent that | must
act If a decision sis rendered IL a case
ton OF whether legal disqualification as to
my participating in a decision existed, and
II so. to make formal declaration, OF the
conclusion reached in respect thereof, thus
leaving a decision OF the appeal OF the
state to my two. ASSOCIATES, and III thsy
passing Of tinieV uftH by changes in the
personnel Of the court a decision could be
reached by an agreement of at least two
members Of the court which the constitu-
ton requires. in order to render a valid
Judgment Of Sffirmsnce OF the Judgment OF
the trial court or a reversal theeof.
His way Clear
Judge Holcomb, concluded that there Is
no legal obstacle In the way Of his partici-
patton in the case, and in closing says;
Entertaining the opinion do, as indi-
Gated, ] concur with my associate in the
judgment Of af1rmanoe. There is much that
occurred curing the trial of the cause in
the lower court which 1 do not approve Of,
but as the result arrived at is the only one
that rightfully could be reached the irreg-
u~larities occurring at the trial. can be re-
garded as errors without preiudice,ist
Judge Sedgwiek in. closing says Being
justified In supposing. that the money in
fact belonged to the Chemical National
bank and knowing that It was intended by
the treasurer to pay u to the bank upon a
warrant issued by the state officers for that
purpose it cannot be said that the circum-
stances were such as to allow Of no other
belief on the part Of the defendants than
that BARLEY in so doing waa converting the
money to his own use." ~ 'cot1 o. 'cN,
Judge sunivan D~issents.'""
In his dissenting opinion Chief, Justice
Sullivan said: as, ,4sai,G rs.
The warrant in question Twas. twice
handled by Mr.. Willard. As agent Of Bart,
iey ne solu II 10 the nrSs.atcsI NsI
tiopai hank he afterward delivered III. to
BARLEY, when he exchanged It for 1901,
SS4.Vo OF the state money 1ne MI az
ststa SINKING fund. ',plaiply written upon
the face of the warrant, did not attract
Mr.. Millard,s attsnIon ,XReh ne TorS1S
when he received it from the New York
bank and delivered tito BARLEY, nor even
when II Jay upon ms 1esK wn y tnnTs sIso
foouunS. tbaI the POSSESSION by BARLEY: OF n
warrant supposed to evidence a debt due
him from the state ~aIn9unIIhs 70 SaSS;i9 i;.9,
neciai wonder or cause him to inquire by
what chance "a solvent lAcommonwesith
could. have become SO PeaVis Fn"Sp'en "
Nst ueaa2S" 1880" a'thaai aonssSv
20 Hst~sAs y tSbS ar 81 ~ & 9asww
"aS : 49, ,-an s~T,psS9STdrsw Ihs
money ana declares that the ~fongful par
ticipation in the deal BY the bank enlarged
the authority OF the state treasurer enp
made the payment OF the warrant anu the
embezzlement possible.
Surely" he said In the opinion De
PENDANTS cannot with any snow OF reason
insist that the unauthorized payment OF tho
fEe
abetted and participated IN, operated Is a
practical enlargement OF the treasurers ac>
tion. AS well might a parftetde ground an
appeal for clemency or compassion on the
fact that he was an orphan. Bartieys rear
authority was to disburse the puohc tunds
upon valid warrants and not .otherWlse+
"syllogisticaliy' stated, the whole 'mSter
is this' The statute In effect declares, that
money can be lawfully obtained from the
state treasury upon valid warrants and not
otherwise. The defendsnts1o obtained che
money in question from7the state treasury
upon d warrant that was notivaltdS Tnere>
Iore .ney oDtaineu Hm
makes no EXCEPTIONS Anoragents even
though he act in good faith must, before
he can rishtfully Law, his hands uoen public
funds, produce a valId;warrant the posses