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intendence and finishing the capitol, and that the memorial asking twenty thousand dollars be adopted;" which, together with the re
port, were adopted by the house. (See house journal 1837–38, ! 229, 230, '32, '33.]
The following resolution, adopted by both houses of the assembly, at the same session, but a few days after the adoption the mcmorial, shows in express language that the legislature did not iutend to justify the commissioners in any of their acts:
Resolved, by the council and house of representatives of the territory of Wisconsin, that the report of the commissioners appointed to agree upon a plan of the public buildings, and to superintend the erection of the same at Madison, dated at Mineral Point, Nov. 29th, 1837, be approved:
That said commissioners be required to advertise for proposals, and contract for the completion of said buildings, on the plan submitted, agrecably to the provisions of an act entitled "an act to establish the seat of government of the territory of Wisconsin, and to provide for the erection of public buildings," approved December 3d, 1836," &c. “ Provided, that nothing herein contain. ed shull go to excuse the commissioners for any misconduct or for acting contrary to the provisions of the act above recited.” [See house journal, 1837-38, p. 331-also, council journal, p. 148, 491
I have made these extracts from documents with which many of you, doubtless, are familiar, for the purpose of presenting a condensed view of the nature of the evidence which procured, or rather furnished an excuse for, a verdict against the territory, in order that the legislature may be better able to judge as to the propriety of further prosecuting those suits.
There was no definite testimony of any sort to show what disposition had been made of the second appropriation of 20,000. One of the witnesses, (Mr. Morrion) stated in general terms, that certain items of work and materials cost him certain sums; when asked how much had been paid him by the commissioners, on his contract, he declined giving an answer, and was excused by the court from doing so.
With this view of the testimony, which I believe is fairly stated, it may appear strange to any one unacquainted with other circumstances attending the trial, that such a verdict should have been rendered; but to every one present at the Walworth court
in April last, it must have been apparent that no amount of testimony, nor any array of professional talent, could possibly have produced a different result from the jury which tried the cause.
From an examination of the list of jurors summoned for that term of couri, it was manifest that there had been foul play, and that the jury had been selected to meet the emergency. Of the thirty-six jurors drawn for that term of the court, all but three or four were attached to the political party known to be, in that county, particularly favorable to the executive of the territory, and the whole seventy-two selected for the year, were about in the same proportion; and so extensively had they drawn upon the resources of this party in selecting the traverse jury, that they seem to have been compelled to draw the grand jury almost exclusively from the opposite party. I am aware it is a grave matter to charge the authorities of a county with having packed a jury for the purpose of screening public defaulters, and defrauding the territory; but whether the grand and petit jurors could possibly have been drawn almost to a man from opposite political parties, without some special design, the legislature and people generally can judge for themselves.
When the case was called for trial, it was found that but about half the full pannel of jurors were present. The counsel for the territory insisted that the pannel should be filled before drawing from the box, which was refused by the court. Several of the jurors were put upon their voire dire, who uniformly swore that they had not formed or expressed any opinion in relation to the case. In the case of one of these jurors, it was proven in court, in the face of his oath to the contrary, that he had repeatedly expressed such an opinion; and the same might have been proven by some others who testified upon their voire dire, but owing to the liinited number of jurors present, the council for the territory did not deem it prudent. It is also a fact that at least half of the jury who tried the case, boarded, during the four days occupied in the trial, with one of the defendants, (governor Doty) at a private house; and I am credibly informed that some of them changed their boarding places and took lodgings with his excellency after they were sworn upon the jury.
The counsel for the territory moved for a new trial, on the ground that the verdict was contrary to law and evidence; which motion was sustained, and a new trial ordered, on condition that
the territory pay the costs already incurred, instanter, and in less than twenty-four hours after this decision was made, judgment was entered against the territory for costs, in consequence of the order of the previous day not having been complied with. The costs amounted to one hundred and fifty dollars, and no provision had been made by the legislature to meet such an emergency.The court was sitting seventy miles from the seat of government, so that, had the money been in the treasury, and it had been possible to get it out, it would have been impossible to have procured it by express, in time to meet the order of the court. To borrow money, without express authority from the legislature, to carry on a suit against a co-ordinate branch of the legislature, who rnight refuse to concur in any act of the legislature for its payment, was wholly out of the question. This decision of the court, although in accordance with the general practice, can, it appears to me, in this particular case, be viewed in no better light ihan a refusal to grant an admitted right. The case has been brought up to the supreme court, by writ of
The defendants, at the July term of the supreme court, alleged a defect in the records, and obtained an order to perfect the same, which prevented the case being argued at that term of the court. It is the opinion of good judges of law that there are strong points of error in the case, and that an order for a new trial is sure to be obtained.
Agreeably to the seventh section of an act entitled “an act to provide for the election of a superintendent of territorial property, and for other purposes," I have caused a suit to be commenced against James Morrison and his suretics for not completing the capitol according to his contract. This suit has been commenced in lowa county, and Messrs. Strong of lowa, and Tweedy of Milwaukee, have been employed as counsel for the territoryThis case will come on for trial at the spriug term of the lowa court; unless put over at the instance of the defendants.
JOHIN Y. SMITH, Superintendent Territorial Property.
[SEE JOURNAL, Page 69.]
JOINT REPORT Of committee appointed to ascertain how long the present session
can continue, fc. The joint committee on legislative expenditures, who were instructed to inquire and report "how long the present session of the assembly can continue, consistent with keeping the expenses within the appropriation made by congress of the sum of $17,275 for the fiscal year ending 30th June, 1844;" and also to inquire into “ the cause of the decrease of said appropriation in amount from former years," respectfully report:
That to the first subject submitted to their inquiry, it is impossible at this early day of the session to ascertain with accuracy the amount which will be required to defray the expenses, direct and incidental, for any particular number of days; but it is the opinion of the committee, basing their estimates upon the best data within their reach, that the appropriation of $17,275 would, with rigid economy, defray the expenses of a session of sixty days. Whether the interests of the territory at the present time require a session for that period, the committee do not deem it within their duties to inquire.
The committee base their report as to the length of time the legislature could continue in session, if necessary, and yet bring their expenditures within the appropriation, on the following esti
Pay and mileage of members, and pay of officers, $10,410 20 Extra pay to speaker of house and president of council,
360 00 Printing laws, journals, &c., last session,
1,663 20 Newspapers,
500 00 Postage,
400 00 Stationery, fuel, candles, repairs to capitol, &c., 1,250 00 Chaplains,
200 00 Salary of superintendent of territorial property,
300 00 Clerk in library,
90 00 Subscription to “ Law Library,”
Preparing journals for press, index, &c.;
200 00 Incidental expenses,
641 60 Total,
$17,275 00 As to the second subject of inquiry submitted to them, the committee report:
That the reason of the deficiency in the appropriation for this year, as compared with former years, is owing to an error of the governor in making out his estimate for the expenses of this session, which error, though easily to be seen, appears to have escaped the notice of the proper department at Washington.
On application to the governor, he furnished the committee with the following extract from a communication made by him to the register of the United States treasury, containing his estimate of expenses for the year ending 3014 June, 1844, viz:
“In my estimate for the year ending the 30th June, 1844, an error accidentally occurred, which I beg leave to correct by asking an additional appropriation at the coming session of congress:
For pay and mileage of members of the legislative assembly, for the session to commence on the first Monday in December, 1843, $2,525 00. Date, Sept. 25, 1843.", All of which is respectfully submitted.
C. M. BAKER, Chairman of committee of council.
ANDREW E. ELMORE, Chairman of committee of house of representatives.
SEE JOURNAL, PAGE 69.1
gislature to investigate the affairs of the Wisconsin Marine and