State v. Hastings. tentiary," and is in the following language: "Building new cell house by days' work, forty thousand dollars." The motives of the legislature are not involved in this controversy, yet the appropriation in question might with equal propriety have been entitled "An act for the relief of C. W. Mosher," since it is a palpable fact that he was beyond the reach of competition. The rules of the prison forbid the employment of free laborers within its walls, hence the contractor was practically able to dictate the wages to be paid by the state. There is, however, no evidence tending to prove that the labor could have been procured on terms more advantageous to the state, or that the amount charged, $1 per day, is excessive. It is true convict labor has been let to some of the subcontractors at the prison as low as forty cents per day, but such employment has been for a term of years, and the employers have in every such case been subjected to the additional expense of costly machinery. It is also shown that the state had on two previous occasions employed convict labor, allowing therefor $1 per day. The state's witnesses who testify on the subject all agree in placing the value of the labor per day at figures largely in excess of the rate charged therefor. The wrong to the state in that regard consists in the charging for labor not rendered, which will be considered hereafter, rather than the rate per day. The charge in that specification is, therefore, not sustained by the proofs. 2. The charge in the second specification is the advancing to Dorgan of money out of the cell house fund before the labor therefor had been performed, or the material furnished, without adequate security. It is not charged that such advancements were made corruptly or even negligently. It should be mentioned in this connection that upon the appointment of Dorgan he was required to give a bond in the sum of $10,000, conditioned that he would faithfully discharge his duties and account for all moneys which might come into his hands. That bond is admitted State v. Hastings. to be good and ample security for any amount now due to the state. Nor does it appear that he was at any time entrusted with money in excess of the amount of the bond aforesaid. On the 1st day of June, 1891, Dorgan presented to the board an estimate, of which the following is a copy: "ESTIMATE No. 1. "For work done and material furnished during the month of May, 1891, for cell house at penitentiary: "The above estimate was made by me this 1st day of June, 1891, and I hereby certify that the amount of work done and materials furnished by said contractor are true and correctly stated and set forth in the above estimate, and that the said estimate is made in the manner and according to the plans and specifications mentioned in the contract with the said state and said contractor. "W. H. DORGAN, Accompanying said estimate was a voucher for $6,100, as follows: "THE STATE OF NEBRASKA, "To W. H. DORGAN, Dr. $6,100 "For material used in building new cell house, per ..... estimate No. 1 hereto attached..... "Examined and approved June 1, 1891, by the board of public lands and buildings, and account to be charged to appropriation for penitentiary, new cell house. "JOHN C. ALLEN, "Secretary. A. R. HUMPHREY, President." State v. Hastings. Upon the approval of the above voucher a warrant was issued in his favor for the amount named therein. In like manner he was allowed $8,000 August 3, 1891; $8,000 October 5, 1891; $5,000 December 7, 1891, and $5,000 March 7, 1892, making a total of $32,100, of which $6,300 was turned over by him to Hopkins on the appointment of the latter. It may be assumed that the sums above enumerated were all advanced by the board before the procuring of the labor or material therefor. But as the charge involves no issue of fraud or negligence the only question necessary to examine is whether the advancing of the money aforesaid is a violation of any positive law. The only provisions to which we have been referred as bearing upon the subject are section 22, article 3, and section 9, article 9, of the constitution which are copied in the order named. "Sec. 22. No allowance shall be made for the incidental expenses of any state officer except the same be made by general appropriation, and upon an account specifying each item. No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law, and on the presentation of a warrant issued by the auditor thereon, and no money shall be diverted from any appropriation made, for any purpose, or taken from any fund whatever, either by joint or separate resolution. The auditor shall, within sixty days after the adjournment of each session of the legislature, prepare and publish a full statement of all moneys expended at such session, specifying the amount of each item, and to whom and for what paid.” "Sec. 9. The legislature shall provide by law that all claims upon the treasury shall be examined and adjusted by the auditor, and approved by the secretary of state before any warrant for the amount allowed shall be drawn; Provided, That a party aggrieved by the decision of the auditor and secretary of state may appeal to district court." In my judgment neither of the above provisions are applicable. The provision for the cell house invested the State v. Hastings. board with a discretion with respect to the money appropriated therefor, which, in the absence of fraud or mistake, is a sufficient justification of the act charged. The above constitutional restrictions were intended to limit the payment of claims to those for which specific appropriations have been made. But while the advancing of money appropriated, to a disbursing officer or board as in this case, is of doubtful wisdom because liable to abuse, it is not prohibited by any express provision of the constitution or necessary implication therefrom. There are also numerous legislative precedents for the action of the board, a few only of which need be noticed. For instance, by chapter 115, Laws 1885, $15,000 was appropriated for an exhibit at the New Orleans cotton exposition, to be drawn by the governor, who was made the sole disbursing officer, and to be spent at such times and for such purposes as in his own judgment was deemed expedient. By an act approved February 6, 1891, $100,000 was appropriated for the relief of “the people in the drouth-stricken districts" of the state, and a board, designated therein as a "Relief Commission," authorized to draw and disburse the money so appropriated. By an act approved March 27, 1891, $50,000 was appropriated for an exhibit at the Columbian exposition, to be drawn and expended by a commission created by said act upon estimates to be followed in a reasonable time by a detailed statement and vouchers. But a case in point is the Impeachment of Melville, in 1806, on the charge of drawing funds as treasurer of the navy before they were needed for public use. In that case the house of lords submitted to the judges of common pleas two questions, viz., 1st, whether it was unlawful to draw public money in advance of the time it was needed for public use but for the purpose of having it for that use; 2d, if such act was an offense. Both questions having been answered in the negative the accused was acquitted. (29 How. State Tr., 1469.) There exists in my mind a grave doubt as to the consti State v. Hastings. tutional authority of a state board to audit claims against the state, but assuming, as do the managers, that such power exists, I do not doubt that they may lawfully place money in the hands of a superintendent to be used by him for the purpose designated in the appropriation, in the absence of a special provision to the contrary, after adopting proper precautions for the protection of the state. 3. With respect to specification 3, it may be said that the bills rendered for stone are grossly in excess of the reasonable or market value thereof through the negligence, incompetency, or fraud of the superintendent. The latter, it is disclosed, contracted with Atwood & Co. for the necessary stone to be delivered on the cars at Cedar Creek, Cass county, or other points not more remote from Lincoln, agreeing to pay eight cents per 100 pounds for common rubble, sixteen cents per cubic foot for dimension stone, and thirty-five cents per cubic foot for stone "plugged to size"-that is, drilled and blasted according to designated measurements. It also appears that Atwood & Co. purchased all of the dimension stone from J. W. Zook and E. D. Van Court, of Nemaha county, paying therefor ten cents per cubic foot, also a portion of the rubble at four cents per 100 pounds, and which was all billed to the state and paid for at the contract price. The price paid by Atwood & Co., it is shown, is a trifle below the market value of the stone, but the difference does not exceed two cents per cubic foot. Zook testifies also that he received a written inquiry from Dorgan previous to the contract of the latter with Atwood & Co. concerning the price of stone, and in reply quoted the prices above named, but which is denied by Dorgan. There is, however, no evidence that the board, or the respondents individually, or any of them, participated in or had any knowledge of such frauds or overcharges. Nor was such a contention made at any time by the managers during the trial, except perhaps with respect to specification 1 of article 2, which will be noticed here |