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Q. Well, I would like to see, say, a bill for each month of the years 1891, 2, and 3.
4. Yes, sir; from any particular institution ?
Mr. RILEY. Well, I think it makes no difference to me. I think they were all treated alike. Perhaps Long Island and Deer Island would be better.
Q. (By Mr. REED.) Mr. Mitchell, I understand you to say that the Auditor has violated no provision of law?
1. Yes, sir.
R. Contracts had been made by the Architect in excess of the amount appropriated by the City Council for that purpose ? A. Yes, sir. Q. That is the situation ? d. Yes, sir.
Q. (By Ald. LOMASNEY.) And, Mr. Mitchell, the contract had been approved by the Mayor, and the city was liable, according to those contracts, were they not, and had to provide the money?
A. Well, I suppose if the work was done they would have to if the contract was carried out.
Q. Well, they were bound by the contract, which was made in legal form? They were bound, and could be held to carry out the provisions of the contract; and as a matter of fact the City Government did provide the money?
A. They provided the money; yes, sir.
Q. And the Mayor and the City Architect, in your opinion, were the ones to blame for that deficiency?
A. No, I don't say so.
Q. And you don't mean to say that, as a matter of law, the city would be liable on any contract made in excess of the appropriation provided by the City Council for that purpose ?
A. I don't know anything about the liability.
Q. Well, have you ever noticed a provision in those contracts that the city shall not be liable in excess of the appropriation for the purpose ?
A. It says so, yes, sir, in many contracts.
Q. (By Ald. LOMASNEY.) Well, did it say so in this contract, Mr. Mitchell ?
A. That I don't know.
Q. (By Mr. RILEY.) This is not clear to me just yet. Why was money paid out on the contract mentioned without the approval of the Commissioners of Public Institutions ?
A. Well, because at that time the Auditor was in the habit of letting the Architect certify, as he did in all other things; but as soon as he discovered that a request wils not made by the Commissioners of the Public Institutions, he required it.
Q. So that that transaction, at least, was irregular ?
Q. (By Mr. REED.) Your name is Andrew J. Bailey, and you are the City Solicitor of the city of Boston ?
A. That is my name and occupation.
Q. And in that year you were aware that the Mayor had appointed a special committee to make an investigation of the public institutions, and that Mr. Frank Miorison was chairman of that committee, were you not?
A. Yes, sir.
Q. Now, do you remember that in the course of the performance of their duties under the appointment, that committee and the Commissioners of Public Institutions discussed the question as to the authority of the Commissioners of Public Institutions to compel labor by the paupers ?
A. Yes, sir.
Q. And is it a fact that those gentlemen, together with yourself, worked up on a contemplated law which they were to ask the Legislature for, to give additional power ?
4. Mr. Morison and myself worked on it for some time.
Q. And were you in consultation with the chairman of the Board of Commissioners during that time upon that subject ?
A. Certainly. He was with us a good deal of the conference.
Q. But the Legislature of either 1892 or 1893 — I think the Legislature of 1893 that followed- took no action on that matter?
A. Not that I recollect of.
Q. And was your bill, or Mr. Morison's bill, in shape to present to the Legislature ?
A. We never formulated it to the end. That is, what I would suggest inserting was not what he wanted to effect; and what he suggested I could not see the legal way of meeting. The result was we never got to any conclusion.
Q. Well, you remember that at that time Mr. Morison obtained from Mr. Babson, the Corporation Counsel, an opinion upon this subject?
I think he did at that time. I know it was talked over in the office a good deal by Nir. Babson and myself and by Mr. Morison and Dr. Jenks.
Q. Well, some action has been taken since that time to obtain legislation on this subject. Now, when was that legislation asked for at the Legislature — it this last session ?
A. 1894, this last session.
d. It was. The Mayor gave Mrs. Lincoln a letter to me, I think, asking me to see what I could do to draw id bill such as would meet her ideas in regard to it; and it was taking up the same subject that we had been considering in 1892. The result was the bill which we presented to the Legislature, and I think it was substantially the one reported. The bill was drawn up and presented to the committee of the Legislature, and I suppose it would go through of its own accord, but instead of that they sent world to me that they would like to hear from me upon it. I appeared before the committee and gave my reasons why it should be passed.
Q. (By Mr. BRANDEIS.) Mr. Bailey, this matter of the legal authority of the Commissioners to enforce labor at Long Island was it subject that was discussed between you and Mr. Morison in 1892 ?
d. It was.
Q. Was that the first time that the subject had ever been considered in your office ?
A. I think it was except that I remember that some time before that it came up incidentally in a conversation between Dr. Jenks and myself.
Q. Merely as an incidental discussion, was it?
A. Well, it came up in this way, I think. I think the doctor wanted some way in which he could prove certain things that took place down at the island or in the institutions. He wanted to know if some law could not be devised by which he could prove the things that took place there without having the whole force brought up into the court. That is, for any little offence that took place at the institutions that he wanted to prove was a violation of law, something that had taken place against the rules of the institution, he had to prove his rules, by the officer in charge, and then had to show that the prisoner had violated the rules. He said it was a pity that they had to go to so much trouble, and it was because of the complaint that he made that it was a pity that they were so short of authority, as he termed it, that this subject came up. I said I didn't know whether they were sliort of authority or not that I hadn't investigated the subject
and there it rested. The subject came up incidentally in that way. Q. That was when ?
Oh, I think that was the summer before 1892; because I shouldn't have remembered that were it not that when Mr. Morison came in there and asked me about it, I remember I smiled and said that that was something in the line of what Dr. Jenks suggested to me last summer.
Q. Then, before Mr. Morison came to you and propounded this question, you had never been requested to investigate the subject?
A. No, not that I remember of.
Q. And, so far as you know, it had never been investigated in the office of Mr. Bahson, the Corporation Counsel ?
A. I don't think it had.
Q. Then, when the matter came up at Mr. Morison's request, after he had suggested it to you, then Dr. Jenks was called in to discuss it
A. I don't remember whether that is so or not. My impression is that Mr. Morison and the doctor came in together to the office and said that Mr. Morison wanted to talk with me on the subject. I think their report had been out at that time - no, their report hadn't been out. It was before their report wils out.
Mr. Morison came in with the doctor and said that he wanted to know about some suggestions he was going to make in the report — some suggestions that he wanted to make in the report. Then the question arose as to whether or not they had authority. He was going to suggest that the paupers be required to labor, and that
the Commissioners should have authority to compel them to. He said he understood from Dr. Jenks that they didn't have that authority now; that I never had investigated it, and that I didn't know anything about it. He wanted to know whether or not they had, and wanted to know if I would look it up, and I said I would ; iind I did.
Q. Did you ever give any opinion on the subject?
Å. No, sir, it was not my part to give opinions except in the way of suggesting something for legislation, and so I never did.
2. Did you ever give informally an opinion as to the question of legislation on the subject?
A. I did.
It was; most certainly. I said this and it is the same argument that I made before the committee of the House of Representatives
that I found upon inquiry in regard to the subject that it had been the practice throughout the Commonwealth not to put them to work; and I said it was not safe to ask any officer to take that responsibility on his own accord, in the doubtful condition of the law, as long as that had been the construction for years. I said that any officer that did it would receive quite a castigation before the public. I wis asked the question before the committee as to what my opinion was of the law. I said, I think, that perhaps they had the authority, strictly and legally, but that I didn't believe it was wise to ask any officer to exercise it under the law as it stood; and it was upon that ground that the committee informed me afterwards they had concluded to report it - that the law had been so long in abeyance that they didn't think any officer should be called upon to attempt to enforce it unless they had a renewal of it. That is the reason, as I understood it, why they reported the bill.
Q: Then you went up there and presented the bill in accordance with the request of Mrs. Lincoln and the Mayor ?
A. Yes. It was simply carrying out the request of the committee that I appeared before them; and the Mayor bail requested that I should do anything I could.
Q. To help on the good cause ?
A. No — he said that if this feeling which had risen was to go on he ought to be protected by having some law passed.
Q. I mean the year preceding. lle hadn't called upon you to do anything then?
A. No, sir.
Q: I mean that before 1892 he had nerer asked you to do anything in the matter?
A. You mean except whit has been stated here?
Q. Yes, the discussion you had with Mr. Morison and Dr. Jenks with a view to preparing a bill; but in 1893, the year following that discussion, no action was taken at all, and you were never called upon to do anything?
A. No, sir.
before that. Whenever we would be talking of things in that same line, – of course, we were always discussing in regard to certain matters of legislation that concerned his department, — and that was a common expression of his, substantially, that he wished they had more legislation.
Q. But you were not requested to take any action before the Legislature?
1. Not at all. His position was that he didn't think it was any of his business to try to get legislation passed. It was his business to (Xecute the laws as they were.
Q. So that that was not any of his business?
A. He didn't think it was his place to make a rigorous use of authority, if they didn't have it clearly by law. Ile couldn't afford to undertake to do it and take the risk.
Q. And it was not any of his business to see that the law was such as he could carry out?
A. Well, that was not any part of his business.
Q. Well, now, you have been City Solicitor during the whole period that the Commissioners have been in office the present Commission ?
A. Yes, sir.
Q. And the first time that this matter was mentioeed to you at all was some time in 1892, when the matter was discussed in the public
press then ?
4. I told you all I knew about it.
Q. Well, the matter was discussed at that time in the public press, and the first criticisms izppeared of the absence of labor down at Long Island about that time ?
4. Yes, sir, I think so.
A. That was the first time my attention was called to it; in 1892, I think.
Q. No, you said that this question of power came up in connection with some talk with Dr. Jenks?
4. Oh, that was the summer before 1892.
Q. Well, in the summer before 1892, this same matter of the absence of any labor down there, the idleness of the inmates, was brought out in quite a number of articles. It appeared in the public press in 1891. Do you remember?
À. I don't remember. I have no doubt there were such articles. The more you speak of it, the stronger my impression is that it came up in connection with some talk of taking prisoners over to Long Island to work, or something of that kind.
Q. Don't you remember that there was considerable discussion in regard to the abuses existing at Long Island, and which substantially led to the appointment of the special committee by Mayor Matthews ?
4. I remember there was consilerable discussion ; yes, sir. Q. And that was in the summer preceding the appointment ? A. Well, I presume so.
I don't recollect it. Q. And at that time don't you recollect that there was this discussion in the public press?
A. I recall the fact, but I am a bad hand on dates. If you should ask me what took place in the Legislature a certain year, I couldn't tell you whether it was one or five years ago. I find myself obliged to look at the Blue Book” often to see just when a law was passed.
Q. Well, I am not speaking of dates, except in order to fix the fact