LCRBMRP-T1804

STATEMENT OF FACTS.

On July 1, 1902, the date of the approval of the law under the provision of which the above debt has accrued on the part of the United States to the Hart Farm School, to wit, "to enable the Board of Children's Guardians to contract for the care and maintenance of 60 wards of the board at the Hart Farm School at the rate of $200 per annum each, $12,000," there were 57 wards of the board at the school, placed there under the terms of a contract between the board and William H.H. Hart, principal of the Hart Farm School, of the date of January 1, 1902, and of the tenor following:

This agreement, made and entered into this 1st day of January, A.D. 1902, by and between the Board of Children's Guardians of the District of Columbia, acting under authority of an act of Congress approved July 26, 1892, entitled "An act to provide for the care of dependent children in the District of Columbia and to create a board of children's guardians," party of the first part, and William H.H. Hart, of the District of Columbia, party of the second part: 00032Witnesseth, SECTION 1. That the party of the first part hereby agrees to place under the care of the party of the second part such male wards of the party of the first part between the ages of eight and eighteen years as it shall select, to be taught and maintained at the farm school of the said party of the second part, near Fort Washington, Maryland.

Section 2. That the party of the first part hereby agrees to pay to the party of the second part, for the teaching and maintenance of such wards as aforesaid, at the rate of one hundred and seventy-five dollars per annum ($175.00), payable monthly, for each and every ward.

Section 3. And the said party of the first part hereby reserves the right to remove any ward placed as aforesaid, whenever such change will, in the judgment of the said party of the first part, or its authorized agent, be of benefit to such wards.

Section 4. And the said party of the second part agrees to receive from the party of the first part its wards as aforesaid for the purpose and at the rate of compensation specified.

Section 5. That the said party of the second part hereby agrees that the wards of the said party of the first part received under this agreement shall be suitable and sufficiently fed, clothed, housed, controlled, and attended in sickness and in health; that they shall be treated properly and kindly at all times, and shall be given agricultural training, including plowing, sowing reaping, care of farm machinery, care and feeding of stock,and all other work incident to farm life. The said party of the second part further agrees that he will cause to be given instruction in blacksmithing and wheelwrighting or some other industrial art approved by the party of the first part or its agent.

Section 6. That said wards shall attend school at least three hours each day (except Saturdays, Sundays, and legal Holidays) from the first day of September to the last day of June in each year, between the hours of 9 o'clock and 12 o'clock a.m. and 1 and 4 o'clock p.m.. as follows: One-half of said wards to be in attendance upon such school in the morning and one-half in the afternoon, unless the agent of the party of the the first part, acting under the advice of the party of the part, directs the adoption of a different schedule.

Section 7. That the party of the second part agrees to report monthly, upon forms furnished by the party of the first part, the record of each boy as to scholastic, industrial, and farm work and general deportment.

Section 8. That at all times the said wards shall receive good, moral training such as would tend to make them useful members of society. And the party of the second part shall cause to be held a Sunday school, for at least one hour on each Sunday, for the religious instruction of said wards of the party of the first part.

Section 9. And the party of the second part shall not transfer wards of the party of the first part to the hospitals of the city of Washington, except in c cases of emergency, or to other institutions or places, nor hire them out, nor place them in control of others persons, unless authorized so to do the party of the first part, or its official agent, in writing.

Section 10. That the said party of the second part reserves the right to return to said party of the first part any of its wards who may be incorrigible, upon giving ten days' notice with a statement of facts justifying such returns; and he also reserves the right to refuse to receive any ward of the said party of the first part when it is manifest that his presence would endanger the health or morals of those already in his charge.

Section 11. That the party of the first part agrees to reimburse the party of the second part for extraordinary expenses which may be incurred by reason of the introduction of any epidemic or contagious disease by wards of the party of the first part. All ordinary cases of sickness will be provided for by the party of the second part, as agreed upon in section 5.

Section 12. That he will exercise due watchfulness to prevent said wards leaving the farm school without permission, and that, if any do so leave, he will immediately notify the agent of the party of the first part, and will make a reasonable effort to find them and secure their return.

Section 13. That the said party of the second part will furnish to all wards discharged from his control by order of the party of the first part, or by the termination of this contract, outfits of clothing equal in quantity and quality to those furnished such wards at the time of their reception by the party of the second part.

That it is hereby mutually agreed and understood that this contract terminates on the 30th day of June. A.D. 1902, without prejudice to rights vested hereunder.

In witness whereof the said party of the first part hath authorized its president to execute these presents and affix its thereto, and the said party of the second 00043part hath affixed his hand and seal hereto on the day and year first above written. Made in duplicate-two copies interchangeably.

J. B. T. Tupper, [l. s.]President Board of Children's Guardians. Wm. H. H. Hart, [l. s.]

Principal of the Hart Farm School.Signed, sealed, and delivered in duplicate in the presence of--Isabel Robertson,Geo. F. Rollins,Witness for J. B. T. Tupper.John W. Douglass,Jennie M. Tustin,Witness for William H. H. Hart.

This contract was carefully considered at a length by the Appropriations Committee and it was decided that the Hart Farm School could not continue its service to the Government under the per capita per annum rate of $175 with a sliding scale of the number of pupils to be maintained. It was desired by Professor Hart that for the ensuing year the rate be raised to $210 per annum each and the number be definitely fixed in the law at 75, so as to assure a specific appropriation of $15,750. that being the minimum sum by which the indispensable plant could be maintained for any number of wards, more or less, leaving all the other provisions of the contract to be continued as they were.

See Hearing before the subcommittee of the House Committee on Appropriations, page 281, Friday, January 9, 1903.

Professor Hart. I have to make provision for a year. I have to buy in the open market. I have to buy at retail, and have all my material shipped over a steamboat line, so that I can not compete with the Government in securing the necessities for this work. I therefore ask that some definite provision be made in the bill upon which I can base my calculation, and one which will be in a reasonable degree adequate, so that I can do the work I am anxious to do, which the community needs done, and which nobody else on earth wants anything to do with, so far as I know.

Senator McMillan. You want a specific contract for 50 children at $210 each?

Mr. Hart. I would like to have a specific contract of 75 children at $210 apiece. Then it will be all right. They can send them as they please. I can have children to go out when other children come in. If they run over 75, if they run up to 80, if they want to pay for them they can, if they do not want to pay for them they need not. All I want is some reasonable basis of operations.

The Chairman. You would naturally have less than 75 sometimes?

Mr. Hart. Hardly.

The Chairman. And sometimes more?

Mr. Hart. No; we had 65 this year. We had a maximum of 65. The number is down now to about 50, but it would run over 75 if we had the money. If we had the money there would be a hundred there now; there would probably be 150 there.

Senator McMillan. You want the amount taken out of the limp appropriation for the Board of Children's Guardian and made a separate appropriation?

Mr. Hart. Yes, sir.

To meet these needs of this service as thus presented Congress passed this law "to enable the Board of Children's Guardians to contract for the care and maintenance of 60 wards of the board at the Hart Farm School, at the rate of $200 per annum each $12,000," thus providing a definite minimum number of pupils and a definite sum of $12,000, for the full term of the service, from July 1, 1902, to June 30, 1903.

On June 9, 1902, after the Congress had adjourned, Professor Hart received the following letter from the agent of the Board of Children's Guardians (see Senate Hearing, p. 273, Wednesday, February 4, 1903):

00054

board of Children's Guardiansof the District of Columbia,Washington, D. C., July 9, 1902. Dear Mr. Hart: You are invited to be present at a meeting of the committee having in charge the contract with you for the present year, to be held at the office of the board this (Wednesday) afternoon at 4.15 o'clock.

Yours, respectfully,John W. Douglass,Agent Board Children's Guardians.

Professor Hart was present in accordance with that notice, whereupon a draft of a proposed contract was submitted to him, and after stating to the committee his objections to it, he told them that the Hart School was already under contract relations; that the old contract just expired was the basis of the law and became a part of the law except as modified by the law as to the definite number of 60 wards and the rate of $12,000 to maintain the school, and that it was not in the power of the board to alter this specific mandatory statute; but that so far as the law provided that the board and the Hart Farm School could contract, namely, "for the care and maintenance of 60 wards of the board at the Hart Farm School at the rate of $200 per annum each, $12,000," the Hart Farm School stood ready to so contract expressly, although the law, finding us in relationship of service pursuant to its terms on July 1, 1902, had already executed itself, thus creating the real contract between the parties named in it for the service named in it for the specific consideration of $12,000, designated and provided in it.

Referring to this conference Mr. B. Pickman Mann says, on page 234 of the Senate Hearings, Wednesday, February 4, 1903:

The above contract of October 13, 1902, is the actual contract signed by Mr. Hart. The version which he submitted to the committee of the House, and which is printed on pages 289 to 292 of the "hearings" is a preliminary draft which was submitted to Mr. Hart for comment and criticism in July, 1902, and in the consideration of which a committee of the board had two sittings with Mr. Hart. At these sittings Mr. Hart objected to certain features of the proposed contract, and agreement was reached upon all points except a portion of section sixteenth.

Professor Hart objected to all features of the proposed contract which were outside of, and hence contrary to, the law which was the measure of the power and duty of both parties. He laid stress, in his objection, particularly upon the sixteenth section, because, as may be seen from an inspection of it, there was no foundation in the law upon which it could rest. The sixteenth section is as follows (see p. 233, Senate Hearings, Wednesday, February 4, 1903):

Sixteenth. It is hereby further stipulated and agreed that the party of the second part shall render a true and perfect statement in writing to the said party of the first part of all purchases and disbursements made by him for and on account of the "Hart Farm School," so called, and the care and maintenance of the wards of the said party of the first part, and shall accompany the same with vouchers. The said statement shall be made monthly for each month, within the first seven days of the following month. The said party of the second part shall also furnish board and room to one person, to be selected and paid by the party of the first part, to be designated and known as property clerk and accountant, who shall keep an account of all supplies purchased for the maintenance of the farm and the care and support of the wards of the party of the first part, and to whom supplies are issues, or for what purpose used, the same to be open to inspection of the party of the first part, or anyone duly authorized by it, such property clerk and accountant to render a monthly statement to the said party of the first part at each regular monthly meeting of the said party of the first part.

00065

The law reads: "To enable the Board of Children's Guardians to contract for the care and maintenance of 60 wards of the board at the Hart From School, at the rate of $200 per annum each, $12,000."

Nothing is said in that law about "contracting to maintain any part of the administrative force of the board without consideration at the Hart Farm School, or as additional service to be rendered the board from the statutory compensation of $12,000 for 60 wards, as this sixteenth section provided. It was clearly outside of the power and duty of the board; it was not only ultra vires, but was oppressive and without consideration. So Professor Hart insisted that the proper parties already were in contract relationship by operation of law, and that he could not abrogate that relationship by consenting to the one proposed.

Reply was made that he must agree to all the ultra vires provisions of the proposed contract, including this sixteenth section, or the children would be withdrawn, and on the 26th day of July the children were withdrawn, contrary to the plain mandatory provision of the law which required the board to "contract for the care and maintenance of 60 wards of the board at the Hart Farm School," and in the face of the fact that the proper parties were at that very moment in such contract relationship under the law as the law provided for, and in the face of the further fact that he had agreed to execute such express contract covering the implied legal situation as was competent under the law, although they had imposed additional onerous conditions in their proposed contract which had not been included in the contract existing at the time the law was being framed, and the law, except as modified in the law itself by specific mention of the number of wards to be placed in the school, the rate of payment and period of time they were to be kept there, and the minimum gross sum provided for the maintenance of the school.

On the 29th day of July, 1902, after having made proper protest against the unlawful proposed contract. Professor Hart agreed to subscribe the same, including the sixteenth section, as fully appears from the postscript of the following letter, dated July 29, 1902, of B. Pickman Mann, secretary of the board, to Prof. Kelly Miller, of Howard University, who was acting for the Hart Farm School in the premises (see Senate Hearings, p. 286, Wednesday, February 4, 1903):

Board of Children's Guardiansof the District of Columbia,

Washington, D.C., July 29, 1902.

Dear Sir: I have considered carefully the proposition which Prof. W. H. Hart has made through you for a modification of the terms of section 16 of the draft of a contract between the Board of Children's Guardians and himself. As I have explained to you already, verbally, I have very limited authority in regard to the execution of this contract, being but one of the members of the committee to which the execution of the contract was intrusted, and, as I explained to you further, the other members of the committee are for the time being inaccessible, one of them being in Europe. Moreover, the committee has been acting under instructions, partly expressed and partly implied, of the board to which it belongs, and it is doubtful whether a quorum of that board could be convened at this time to consider new instructions, if it were deemed advisable to attempt to convene it for that purpose.

The opinion of the committee, thus instructed, in regard to the proper substance of the proposed contract, was formulated definitely in the draft submitted to Professor Hart. I do not feel justified in recommending to the acting president the signing of any contract departing essentially from that proposed by the committee; 00076and after consulting with him I regard Professor Hart's present proposition as such a departure.

I return herewith Professor Hart's copy of the draft of section 16, proposed by the committee, and a copy of Professor Hart's latest proposition.

Yours, respectfully,B. Pickman Mann.Prof. Kelly Miller, Howard University, City.

P.S.--Since this letter was written Professor Hart has called on me and stated that he was willing to sign the contract proposed by the board.B.P.M.

Instead of promptly executing the proposed contract, assented to from the beginning so far as it was legally competent, and then, after proper protest, assented to in all its features, the board, although repeatedly requested to do so, neglected and refused to execute the same until the 13th day of October, 1902, and in November, 1902, pursuant to the sixteenth section of this contract, Professor Hart was notified by Mr. Mann, the secretary of the board, that a representative of the administrative force of the board had been designated by the board to go the Hart Farm School as property clerk, and Professor Hart was handed the following written instructions of the board to him for his information (see Senate Hearing, pp. 278,279, Wednesday, February 4, 1903):Proposed instruction of the Board of Children's Guardians to their clerk at the Hart Firm School, in pursuance of taking possession of the property of that institution under the proposed contract to be made by the board with the Hart Firm School through Prof. William H.H. Hart, principal of the Hart Firm School.

Section 16 of the contract provides as follows:"It is hereby further stipulated and agreed that the party of the second part shall render a true and perfect statement in writing to the said party of the first part of all purchases and disbursements made by him for and on account of the "Hart Farm School, so called, and the care and maintenance of the wards of the said party of the first part, and shall accompany the same with vouchers. The said statement shall be made monthly for each month within the first seven days of the following month.

"The said party of the second part shall also furnish board and room to one person, to be selected and paid by the party of the first part, to be designated and known as property clerk and accountant, who shall keep an account of all supplies purchased for the maintenance of the farm and the care and support of the wards of the party of the first, and to whom the supplies are issued, or for what purpose used, the same to be open to inspection of the party of the first part, or anyone duly authorized by it, such property clerk and accountant to render a monthly statement to the said party of the first part at each regular monthly meeting of the said party of the first."

The property clerk and accountant "shall keep an account of all supplies purchased for the maintenance of the farm (the Hart Farm) and the care and support of the wards of the party of first part (the Board of Children's Guardians of the District of Columbia)."

For this purpose he shall make a list of all supplies received at the Hart Farm and purchased for the maintenance of the farm, and the care and support of the wards of the Board of Children's Guardians at the farm, stating the date of receipt of said supplies, and the kind and quantity of each kind. As a basis of such list he shall make an inventory of the supplies in hand at the time he goes to work. This list and inventory shall include the building, machinery, tools and harness, the number and kind of domestic animals destined for use in work or as food, the seed, fertilizers, meats, grains, folder, hay vegetable and food supplies stored, the garments in stock for clothing the children, and all other supplies of kinds such, that if not already on hand, they would have to be purchased for the maintenance of the farm and the care and support of the wards of the board. It is assumed that Mr. Hart will give the property clerk and accountant such access to those supplies as to enable the list to be made. These supplies only shall be considered as devoted to the purposes of maintaining the farm and caring for and supporting the wards of the board which are so listed. 00087The property clerk and accountant "shall keep an account of--to whom the supplies are issued or for what purpose used."

For this purpose he shall open and account with each ward of the Board of Children's Guardians who is cared for and supported at the Hart Farm School, and shall charge him with each item of clothing issued to him, such as coats, hats, shoes, shirts, drawers, stockings, handkerchiefs, and other major and minor articles.

He shall also open an account with the house and charge it with all meats, vegetables, bread, milk, and other food supplies consumed from day to day.

He shall also keep account of all increment in the farm; such as colts, calves, lambs, shoats, fowls, milk, butter, corn, wheat, oats, barley, roots, vegetables, fruits, crediting the same as if purchased and accounting for the same when consumed or disposed of.

He shall also keep a time record of the hours when each ward of the board is in school and at work, and of the department of work in which ward is engaged, whether farming, carpentering, blacksmithing, or wheelwrighting.

The monthly statements rendered by the property clerk and accountant shall show the kind and quantity of each class of supplies on hand at the beginning of the month, the kind and amount acquired and disposed of, and remainder, and shall certify that the stated remainder has been verified by inspection. In the case of buildings, machinery, tools, work animals, and the like of a comparatively permanent character, it shall not be necessary to make monthly statements, but changes in these shall be noted when they occur.

The above instructions have been authorized by authority of the Board of Children's Guardians.B. Pickman Mann,Secretary Board of Children's Guardians.

Professor Hart then yielded to this auction without further protest, and this property clerk took charge of all of the school property without being required to give any bond, and so remained in charge until just after the recent adjournment of Congress, in March 1903, when he was informed by the board that they had abrogated the sixteenth section of their contract, and their representative was thereupon recalled from the Hart Farm School and placed on duty in their office here in the city.

The payments made to the Hart Farm School have not been in accordance with the provision of the law for "60 wards of the board at the Hart Farm School, at the rate of $200 per annum each, $12,000," or one-Twelfth of the gross specific appropriation of $12,000, for each month; i.e.,$1,000 for each month from July 1, 1902, to July 1, 1903, making $12,000.

But instead they have tendered the Hart Farm School in this behalf for the year beginning July 1, 1902, and ending June 30, 1903, $3,741.40, leaving due and payable and unpaid on July 1, 1903, by the United States to the Hart Farm School a balance of $8,258.60 and interest, $598.10, making total of $8,856.70, for which balance due and unpaid demand is hereby formally made.

On March 5, 1903, Professor Hart made a written demand upon the disbursing officer of the board for the statement of the amount of this account then due and asked for its payment. This demand was by this officer referred to the honorable Comptroller of the Treasury for his consideration, and was by him sent back to the disbursing officer of the board for proper voucher presentation, pursuant to proper consideration, and was retained by the disbursing officer of the board, who declined to formulate proper voucher presentation of the debt under the law to the Comptroller, as requested, and returned the letter of demand to Professor Hart with the following indorsement:

The Board of Children's Guardians has not authorized its disbursing officer to pay any claim of Mr. Hart herein referred to. It considers that it has paid him in full to March 1 for services rendered under the law.

00098

Thereupon, on March 18, 19003, having exhausted every means to secures settlement from the board. Professor Hart made application to the Auditor for the State and the other Departments for a settlement of the accrued indebtedness of the United States to the Hart Farm School.On March 26, 1903, the Auditor for the State and the other Department transmitted the papers in the case filed with him to the honorable Comptroller of the Treasury, with a letter containing the following paragraphs of his views and action in the case:

The question involved I hold to be one of interpretation of the act of July 1, 1902; that is, whether the language of the act is such as to make it mandatory to pay Mr. Hart the full sum of $12,000 appropriated, without regard to the terms of the contract entered into with the Board of Children's Guardians, or whether the contract governs, at least so far as relates to the number of wards sent to the Farm School by the board and the period for which they were maintained. I am unable to construe the law as to read into it a declaration such as the claimant contends. I therefore find no authority to allow the claim. As this decision, however, involves an original construction of that portion of the act of July 1, 1902, supra ["to enable the Board of Children's Guardians to contract for the care and maintenance of 60 words of the board at the Hart Farm School, at the rate of $200 per annum each, $12,000"], I have suspended action upon the case and submit the matter to you for approval, disapproval, or modification, under section 8 of the act of July 31, 1894.

NO WAIVER OF ANY RIGHT UNDER THE LAWThere has been no waiver at any time nor in any way of the rights of Hart Farm School under the statue. Whatever its principal has done has been under proper protest to save its rights harmless and without prejudice in the premises. The facts of refusal to subscribe to the incompetent proposed contract on July 26, 1902, and finally yielding, after proper protest three days later, on July 29, 1902, abundantly proved this fact.

Having made the protest effective as to their whole contract, so far as any part of it was inconsistent with its rights under the statue, Professor Hart notified them within seventy-two hours that he was ready to go ahead under their own enforced terms, in order to perform this public statutory service and to save the school from immediate and absolute destruction, not waiving anything.

The board, by the peremptory withdrawal of all its wards from the Hart Farm School on July 26,1902, did not and could not break the contract relationship created by the statue from July 1,1902, between them and the Hart Farm School, even in the absence of any express legal contract in conformity with the statue covering the service which was being performed by the Hart Farm School without default up to the time the board itself up to the time the board itself violated the law, and inasmuch as the statue itself and the contract under it began to run on the same date and the act itself limited by express terms the number of wards and the rate of compensation and the entire and definite amount of money specifically appropriated for the service, thus withdrawing all discretion from the board as to these three particulars of the contract and making the duty of the board as to these particular of the number of wards, rate of compensation, and specific sum set apart for the service purely and simply ministerial under the statue which had executed itself before the said 26th day of July, 1902, it was impossible for the board, by any action whatever which it might take, to divest the Hart Farm School of its entire rights according to the very terms of the statue, provided the Hart Farm School stood ready and willing to perform 00109the legal service of caring for and maintaining the number of wards specified in the statute at the rate of compensation for the period of time specified in the statute.

The Hart Farm School had performed the service required by the statute from the 1st of July, 1902, up to and including July 26, 1902, when, without fault or default on its part, the wards were withdrawn, and then and continuously thereafter the Hart Farm School stood ready and willing and anxious to continue the service, and repeatedly informed them of this fact, both verbally and in writing, even to the extent of executing the contract as by them proposed, as appears from the letter of B. Pickman Mann, secretary of the board, dated July 29, 1902, to Prof. Kelly Miller, of Howard University, as follows (see Senate Hearings, p. 286, Wednesday, February 4, 1903):

Board of Children's Guardiansof the District of Columbia,

Washington, D.C., July 29, 1902.

Dear Sir: I have considered carefully the proposition which Prof. W. H. Hart has made through you for a modification of the terms of section 16 of the draft of a contract between the Board of Children's Guardians and himself. As I have explained to you already, verbally, I have very limited authority in regard to the execution of this contract, being but one of the members of the committee to which the execution of the contract was intrusted, and as I explained to you further, the other members of the committee are for the time being inacessible, one of them being in Europe. Moreover, the committee has been acting under instructions, partly expressed and partly implied, of the board to which it belongs, and it is doubtful whether a quorum of that board could be convened at this time to consider new instructions, if it were deemed advisable to attempt to convene it for that purpose.

The opinion of the committee, thus instructed in regard to the proper substance of the proposed contract, was formulated definitely in the draft submitted to Professor Hart. I do not feel justified in recommending to the acting president the signing of any contract departing essentially from that proposed by the committee, and after consulting with him I regard Professor Hart's present proposition as such a departure.

I return herewith Professor Hart's copy of the draft of section 16, proposed by the committee, and a copy of Professor Hart's latest proposition.

Yours, respectfully,B. Pickman Mann.

Prof. Kelly Miller,Howard University, City.

P.S.--Since this letter was written Professor Hart has called on me and stated that he was willing to sign the contract proposed by the board.B.P.M.

And as further appears from Professor Hart's letter in that behalf to Mr. James B. T. Tupper, president of the board, dated August 6, 1902 (see Senate Hearings, p. 287, Wednesday, February 4, 1903), as follows:

420 Fifth Street NW.,Washington, D.C., August 6, 1902.

Dear Sir: I have been advised that a suggestion was made by the board at its meeting this afternoon to have me state to the board in writing my willingness to sign the contract proposed to me by your committee at its meeting last month. In accordance with the suggestion, I hereby express my willingness so to do.

Very truly, yoursWilliam H.H. Hart. Mr. James B.T. Tupper,President Board of Children's Guardians.

Notwithstanding these repeated requests on the part of the Hart Farm School to the board to carry out the law, and while Professor Hart was maintaining the institution intact at great expense and loss of perishable supplies which had been accumulated in view of its statutory 001110service, they refused and neglected to execute an contract, so far as they could execute one, or to resume relations in any way, so far as they could resume them, until October 13, 1902. So there was neither waiver of right nor failure of duty on the part of the Hart Farm School up to October 13,1902, when their own contract was executed, and since that event there has been no waiver of right nor failure of duty attributed to the Hart Farm School in the premises.

Indeed, on the contrary, there has already been performed an excess of service beyond what the law requires, on its part, as to the number of wards to be cared for and maintained at the Hart Farm School, to entitle it to the full sum of $12,000, and to much more than that.

The law reads, "to enable the Board of Children's Guardians to contract for the care and maintenance of 60 wards of the board at the Hart Farm School, at the rate of $200 per annum each, $12,000," and as the record will show there were 57 wards of the board at the Hart Farm School on July 1, 1902, all of whom were withdrawn on July 26, 1902, and since October 13, 1902, more than 43 other different wards have been cared for and maintained at the Hart Farm School, making more than 100 wards instead of the 60 provided for in the statue. Not one of these was removed at the was removed at the request of Professor Hart, nor did he refuse or neglect to care for and maintain a single one of them since the statutory service began to run on July 1, 1902. They were removed, one and all, against his will and to his great grief and damage.

When it is considered that each ward withdrawn before the expiration of the statutory term of one year costs large sums in outfits of clothing and other things pursuant to removal, and that the resources of the school are further financially taxed, its discipline embarrassed, and defeated by the constant withdrawal of wards rendered docile before the expiration of the annual term, and the constant substitution for them of different, vicious, and incorrigible wards, this large loss and cost falling outside of the statute and in contravention of its express terms may be appreciated.

The Hart Farm School has the right to claim, and does claim here and now, the contract allowance of the proportionate part of the $200 per capita per annum that the period of time each ward is cared for and maintained at the farm school entitles it to in all cases where such wards were outside of and over and above the original 60 wards provided for in the statute at $200 per capita per annum, always holding itself instantly ready to care for and maintain throughout the year the original 60 wards of the board found in the farm school any time after July 1, 1902, and wrongfully withdrawn any time before June 30, 1903.

And in addition to this service outside the statute forced upon the school in order to maintain any relations whatever--either inside the statute or outside of it--there has been the heavy extra statutory cost of maintaining a part of the administrative force of the board at the Hart Farm School from November 1, 1902, to March 18, 1903-more than four and one-half months--as the lordly representative of the board, the cost of his keep, and extravagant orders and airs, was not less than $1,000. It was not only what he personally used and consumed, but what his interference caused to be unnecessarily used and expended in every way from his inexperience, by the whole institution during this period.

The law itself, since it designated the parties, fixed the service and the 001211compensation specifically and in gross for its performance, in express terms is an offer to the party named therein, which, when accepted, become a self-executing contract which the public servants of the contracting sovereign proposing the law for its own service can not modify or annual it in respect of any of the essential elements of such statutory contract--as to parties to it, the service to be performed under it, and the special and gross consideration limited in it.

This same property clerk of the Board of Children's Guardians, while in possession of the Hart Farm School, assembled large quantities of its stores and supplies in the four large barns, consisting of dovecote and calf barn, sheep fold, tobacco barn, hay barn, corn barn, grain bins, harness room, horse barn, cutting room, carriage barn and power house, and dairy barn, filled with inflammable and combustible materials and costly improved agricultural machinery.

On the evening of April 17, 1903, Walter Mackenzie, a 16-year-old ward of the United States, who had up to July 26, 1902, become a docile pupil of the Hart Farm School, and who was on that date unlawfully withdrawn from the school and turned loose in the streets of this city by the board, where he become desperately criminal, and who was subsequently again arrested by the Metropolitan police and by the board improperly sent to the Hart Farm School, and after trying five times to escape, thence deliberately set fire to these barns in an attempt to destroy the whole institution, so that he might again be enlarged of his liberty by the board.

The loss of these indispensable buildings and their equipments and supplies is not less than $15,000, due proximately and directly to the oppressive and unlawful official action of the Board of Children's Guardians. There is appended hereto the written confession of his crime by this ward, properly witnessed, and Professor Hart's letter to the agent of the board, to whom he brought secretly and hastily out of Maryland to the board in this city, and who had this ward committed to the Reform School, where he now languishes. This agent, Mr. Douglas, read the confession, questioned the boy, and subsequently visited the Hard Farm School to verify the confession and the arson; and the school now claims this loss against the United States. This claim is further covered in spirit by section 11 of the contract in force between the board and the Hart Farm School as an extraordinary loss, against which the institution was assured by the board. (See page 2.)

The Hart Farm School andJunior Republic for Dependent Colored Boys,

Washington, D.C., April 20, 1903. Dear Sir: I beg to return to you Walter Mackenzie, who deliberately set fire to the four large barns of the Hart Farm School about 7 o'clock in the evening of April 17, 1903. The barns, with all their feed and forage and all the farm machinery and tools and implements and wire and building supplies, etc., which has been assembled therein by Mr. Davis, the property clerk of your board, were totally consumed, entailing a loss of not less than $15,000.

Mr. Davis had, in the performance of his supposed duty as property clerk of the Board of Children's Guardians, assembled every tool, machine, and implement accumulated during the past seven years in the great barn and locked the door, and everything was loss.

We have not a hoe nor a corn knife left of our extensive and costly agricultural equipment.

Walter Mackenzie was a good boy when the children were removed in a body last summer by the Board of Children's Guardians and turned loose in the streets of Washington, contrary to the act of Congress that provided that they should be kept 001312at the Hart Farm School "for care and maintenance." His wild life in the streets for five months, until again arrested and sent to the school, has utterly ruined him. His return to the school led him to plot something which would cause ail the wards to be again returned in a body to the city like they came last summer, so he tried to burn down the whole place. The Home Fire Insurance and other companies refused to insure the school plant last month when most of my outstanding policies expired, because we were rated as a "negro reformatory:" so we have very little insurance--almost none--certainly not more than $1,400, if we can collect it all. The whole place would undoubtedly have been consumed if the splendid and heroic work of the soldiers from Fort Washington, under the command of Doctor Reynolds, of the Army, had not saved the other buildings of the group. The neighbors and soldiers saved us from total destruction.

All our feed, forage, implements, seed, fertilizer, chemicals, power cutters, mowers, binders, ensilage cutters - in short, everything - is lost as a consequence of the action of the board last summer. The ruin is complete.

Yours, truly,Wm. H.H. Hart.John W. Douglas, Esq.,

Agent of the Board of Children's Guardians of the District of Columbia.Statement of Walter Mackenzie, in the presence or Profs. Robert J. Evans, C.H. Jones, C.B. Randall, and William H.H. Hart, Sunday morning, April 19, 1903, as to his setting the burn of fire Friday night about 8 o'clock, April 17, 1903.I went into the barn directly after supper and went up the ladder in the area way to the loft back in among the straw. I had one match and lighted it on my overalls and I threw it on the floor among the straw, and it caught fire, and when I saw it burning I came down the ladder out of the barn up to the wash room at the kitchen.Walter Mackenzie.

Signed in the presence of the above witnesses.Note.--Walter afterwards said that he was smoking a cigarette made iron tobacco stolen from the blacksmith, and used matches (two matches) given him by the blacksmith to make fire in the forge, and used one and kept the other to steal a smoke; that when the fire caught he tried to put it out, and then seeing he could not he came to the house. Asked why he did not holler when the fire first caught, he said he did, but this statement is denied by Nathaniel Weems, whose statement is as follows:

I was standing at the kitchen house door and saw Walter Mackenzie walk fast our of the barn and turn into the cow barn, going down through it toward the woods, and a moment afterwards I saw the blaze. Robert Johnson and I were standing together, and both of us hollered "Fire."Nathaniel Weems.Statement of Robert Johnson.Near Easter Walter Mackenzie, who was cutting wood on the wood pile, said to me: "If this place was to burn down, all the boys could go home like they did last summer."Robert J. Johnson.

Statement of Nathaniel Weems.Walter Mackenzie told me about three days before Easter that he wished he knew what he could do so that he could go home.Nathaniel Weems.

All these statements were made in our presence.Wm. H.H. Hart.C.H. Jones.Chas. B. Randall.R.J. Evans.Richard Powell's statement.Just after the fire began to die down Walter told me that if the whole place had burned down all the boys would go back home.Richard Powell.

001413

And specifically covered by section 6 of the existing contract between the board and the Hart Farm School:

That the party of the first part agrees to reimburse the part for all extraordinary expenses which may be incurred by reason of the the introduction of any epidemic or other infectious or contagious disease through or by the wards of the party of the first part, such expenses to be subject to the supervision and control of the party of the first part, and to recommend to Congress that appropriation be made to remunerate the party of the second part for any loss or destruction of property through or by the wards of the party of the first part, aside from ordinary wear and tear.

The whole of this contract is here given as the proper contract in the premises, but could not be gotten until Professor Hart drew it and proffered it to the board, whereas, under the law, it was and is the duty of the board to move first and tender a proper form of agreement, since the law says: "The Board of Children's Guardians id hereby directed to contract for the care and maintenance of sixty wards of the board at the Hart Farm School," etc.--"at" here meaning with, as that construction is necessary to supply the other party. So by the law the duty is laid on the board first, and the other party can not move the board obeys the mandate.

This agreement, entered into this first day of July, in the year of our Lord one thousand nine hundred and three, by and between the Board of Children's Guardians of the District of Columbia, acting under authority of an act of Congress, approved July 26, 1892, entitled, "An act to provide for the care of dependent children in the District of Columbia and to create a board of children's guardians," party of the first part, and William H.H. Hart, principal of "The Hart Farm School," party of the second part, in pursuance of an act of Congress approved March 3, 1903, entitled, "An act making appropriations to provide for expenses of the government of the District of Columbia for the fiscal year ending June thirtieth, nineteen hundred and four, and for other purposes," to wit: "The Board of Children's Guardians is hereby directed to contract for the care and maintenance of sixty wards of the board at the Hart Farm School at the rate of two hundred dollars per annum each, and for this purpose the sum of twelve thousand dollars if hereby appropriated."

Witnesseth, Section 1. That the party of the first part hereby agrees to place and maintain under the care of the party of the second part, at the Hart Farm School, throughout the fiscal year beginning July 1, 1903, sixty of its wards.

Sec. 2. That the party of the first part agrees to report, in writing, to the party of the second part the names and ages of, and such other information about all its wards proposed to be places as aforesaid as may be necessary to determine whether such children are acceptable to the party of the second part.

Sec. 3. That the party of the first part agrees to pay to the party of the second part, for the care and maintenance of such of the wards of the party of the first part as shall be placed at the Hart Farm School, at the rate of two hundred dollars per annum each, payable monthly for each month on the first day of the succeeding month.

Sec. 4. That the party of the first part hereby reserves the right to remove any of its wants from the hart Farm School for the purpose of placing him elsewhere whenever, in the judgment of the said party of the first part, after hearing any objection thereto, such action shall be by it deemed best for the progress and welfare of such ward, or whenever the conditions of this agreement shall not have been faithfully carried out by the party of the second part.

Sec. 5. That the party of the first part hereby reserves the right to visit its wards by its agents, or otherwise, at all reasonable times, and to see converse with them in private.

Sec. 6. That the party of the first part agrees to reimburse the party of the second part for all extraordinary expenses which may be incurred by reason of the introduction of any epidemic or of any infectious or contagious disease through or by the wards of the party of the first part, such expenses to be subject to the supervision and control of the party of the first part; and to recommend do Congress that appropriation be made to remunerate the party of the second part for any loss or destruction of property, through or by the wards of the party of the first part, aside from ordinary wear and tear.

001514

Sec.7. That the party of the second part agrees to receive such wards of the party of the first part as the party of the first part wishes to place under the care of the party of the second part of the purposes and at the rates of compensation above stated, subject to the following conditions:

First. Such children shall be free from chronic and contagious diseases.

Second. Such children shall not be criminally incorrigible.

Sec. 8. That the party of the second part hereby reserves the right for good cause stated to refuse to receive any ward and to return to the party of the first part any ward which shall have been received and shall prove to be an improper inmate, upon giving ten days notice in writing of intention to return such ward, which notice shall contain a full statement of the facts and circumstances because of which such action is deemed to be necessary; wards so returned to be delivered at the office of the party of the first part of such other place as may be agreed upon within the city of Washington.

Sec. 9. That the party of the second part hereby agrees that the wards of the party of the first part received by the party of the second part under this agreement shall be suitable and sufficiently fed, clothed, housed, controlled, and attended in sickness and in health, and shall be treated kindly and properly at all times; and, further, that each of said wards shall be given agricultural training and instruction in other work incident to farm life, and also instruction in black-smithing and wheelwrighting or the art of carpentry, or in place thereof, such other industrial art or arts as may be agreed upon mutually by the parties hereto; and, further, that said wards shall be instructed in reading, writing, history, geography, music, and ciphering, in manner adapted to the capacity of said wards to learn, within the first five grades of the public Schools of the District of Colombia; and for that purpose the said party of the second part shall supply a sufficient number of books and tools and shall employ a sufficient number of competent persons to care for, control, train, and teach the wards of the party of the first part in accordance with this agreement; the hours of schooling and of farming and industrial training to be so arranged that each ward of the party of the first part shall receive six hours of either schooling or farming and industrial training each day except Saturdays, Sundays, and legal holidays; that they shall be given good moral training and religious instruction which will tend to make them good and useful members of society.

Sec. 10. That the party of the second part shall not transfer ward of the party of the first part to any hospital, except in cases of emergency, not to other institutions or places, nor place them in the employ of other person, unless authorized so to do by the party of the first part or its official agent; and shall exercise due watchfulness to prevent said wards leaving the farm premises without permission, and in case any do leave he shall notify the agent of the party of the first part immediately, and shall make a reasonable effort to ascertain where such ward may be found, and t secure his return.

Sec. 11. That the said party of the second part will furnish to all wards discharged from his control by order of the party of the first, or by the termination of this contract, outfits of clothing equal in quantity and quality to those worn by such wards at the time of their reception by the party of the second part.

Sec. 12. That this agreement shall be valid for one year from the 1st day of July, 1903, without prejudice to the rights vested hereunder.

In witness whereof the said party of the first part hath authorized its president to execute these presents and to affix its corporate seal thereto, and the said party of the second part has affixed his hand and seal hereto on the day and year first above written.J. B. T. Tupper, [Seal.]President Board of Children's Guardians. WM. H.H. Hart, [Seal.]Principal of the Hart Farm School.

Signed, sealed, and delivered (in duplicate) in the presence of -John W. Douglass, [Seal.]472 Louissiana Avenue.

On January 1, 1902, the Board of Children's Guardians, then being under contract with Professor Hart for its wards at the Hart Farm School for the fiscal year ending, June 30, 1903, at the rate of $200 per capita per annum, deliberately broke this contract, because, as they say in their tenth report, being for the fiscal year ended June 30, 1903, page 16--001615The rate of $200 between July 1, 1900, and June 30, 1901, was fixed by a contract which by its terms expired at the latter date. No new contract was made immediately for the following fiscal year, but the former relations were continued by mutual consent. At the meeting of the board held December 21, 1901, in consideration of a recommendation made at the preceding meeting by the committee on accounts, which found that a deficit was being created in the funds for the maintenance of wards, "it was ordered that a reduction be made from the rate now paid" at the Hart Farm School "to the rate of $175 per annum from January 1, 1902."

This arbitrary and unlawful breach of contract, both by reducing the rate and reducing the number of wards, because "a deficit was being created in the funds for the maintenance of wards," resulted in great damage to the school, because it was unable on account of the unlawful withholding of this money to buy feed for its cattle and horses, and they died from starvation. Five thousand dollars would not repair this damage.

Recurring now to the main argument, since the Hart Farm School has rendered the whole service, so far as the servants of the sovereign cocontractor would allow it to do so, and held itself ready to render all the service required under the law throughout the running of the statutory period of service, the proper representatives of the sovereign must pay the accrued indebtedness; and if the board won't pay, then the Auditor for the State and other Departments, must pay; and if he won't pay, then the Comptroller must see that it be done, because it was inconceivable by the sovereign that all the servants of the Government will refuse to carry out the plain mandate of its law with respect to the care and maintenance of its helpless wards.

And if the Comptroller of the Treasury did not pay this debt upon proper application formally and substantially made to him, but in error decides that the remedy is damages--as if damages could lay against the sovereign or against a public agency performing a purely public service--instead of paying the money appropriated by law for the specific purpose of the demand, all the agencies of the sovereign thus refusing to obey the law and perform the duty cast upon them by law, the school now comes to Congress for relief.

The Hart Farm School has been ready and anxious every moment since July 1, 1902, to supply the care and maintenance contemplated and demanded by the statute, because the Hart Farm School regarded the statute as mandatory upon it, since the request of the sovereign is a command to its servant, and therefore has maintained its salaried teachers, live stock, perishable stores, supplies, materials, and things for that service at great cost, and has been subjected to great loss, embarrassment, and damage by the conduct of the board in refusing and neglecting to pay over the money specifically appropriated for the Hart Farm School.

Failing to receive its monthly statutory allowance for the statutory service, the school has had to be kept ready to discharge its public service by Professor Hart's personal credit, pledged to merchant, bankers, and friends as it had no cash, and the payment of the following outstanding obligations can not be postponed any longer.

This list of pressing debts and the reason of their existence were presented to Congress, and no doubt had great influence in causing the enactment of the splendid law providing for the school for the current year.

See Senate Hearings, pages 295 and 296, Wednesday, February 4, 1903, as follows:001716The items of indebtedness are as follows:Memorandum of outstanding obligations incurred by William H.H. Hart in behalf of the Hart Farm School.Wm. M. Galt & Co., of Washington, D.C $262.00 C.M. Woolf & Co., of Washington, D.C., agricultural supplies, Tenth street and Louisiana avenue NW592.70Mrs. C.W. Woolf (loan), wife of C.M. Woolf, esq300.00Orndorf & Truxton, agricultural supplies, Seventh street opposite Center Market300.00 Saks Company (clothiers)364.83The Schneider Baking Company530.91 Frank Hume (grocer)231.37 Theodore Barnes (butcher, Center Market)402.27 Thomas W. Smith (lumber dealer)268.04 Francis Miller28.15 J.B. Kendall40.00 Z.D. Gilman (drugs)40.00G.G. Cornwell & Son545.70 J.J. Walker's Sons (204 Tenth street NW.)31.00 E.S. Randall (Potomac River Line)225.00 William Hahn & Co190.45 P. Mann & Co., agricultural supplies, Seventh street, opposite Center Market85.00 Bellevue Dairy Farm (loan), Mr. Blunt, P street, between Fourteenth andFifteenth streets NW250.00Benjamin F, Leighton, esq. (loan), Columbia Building, Fifth street188.00 George Francis Williams (loan), Columbia Title Insurance CompanyBuilding, corner of Fifth and E streets NW175.00 James F. Bundy, esq. (for Mr. Dickey), 420 Fifth street NW115.00 J.P. May (hardware)10.00 Charles R. Edmonston7.43 William Ballantyne & Son19.67 Guy, Curran & Co17.48 Balance on loan from Mrs. Helen Douglas975.00

ACCOUNTS IN ALEXANDRIA, VA.Messrs. Aitcheson & Brothers (lumber dealers)759.00 Alexandria Chemical and Fertilizer Company534.00 Henry Baader (stoves, etc.)20.75Messrs. W.H. May & Son (agricultural supplies)232.47Mr. R.E. Grover (scow freight)20.00 George H. Robinson's Sons16.30

ACCOUNT IN BALTIMORE.Mrs. Mary A.L. Carpenter (mortgage loan now due, $4,000. Paid onsame, $500)3,500.00 Interest now due and unpaid210.00

ACCOUNT IN NEW YORK.Hon. S.V. White (mortgage loan) 3,000.00 Interest on same due and unpaid380.50

ACCOUNT of the HART FARM SCHOOL.Prof. Robert J. Evans (salary for the months of August, September, October, and November, 1902)100.00Prof. C.H. Jones (salary for same period)100.00 Prof. W.W. Privatt (salary for same period)100.00Prof. Randall (salary for November)25.00 001817Mrs. R.J. Evans (seamstress, salary for November)$15.00 Mrs. Elizabeth M. White (matron, salary for October and November)36.00 Mr. William Robinson (salary for September, October, and November)15.00 Mrs. Ann Henson (laundress)28.00 Mr. Frank Freeman (for salary overdue)160.00 Mr. Smith (salary for October and November)30.00 Mr. James Jones (salary for October)10.00 Three apprentice wards of the board, at $3 each, for August, September, October, and November12.00 Louis H. Stabler (No. 1319 F street NW., fire insurancepolicies beginning to expire on January 14, 1903)176.27 State and county taxes on the farm school property, real and personal, now overdue and unpaid to the county treasurer at Upper Marlboro,Prince George Country72.30 Total.15,783.59

These debts are now larger than when submitted in December, 1902, and the school now owes over $22,000 on its own account outstanding and unpaid, and its only resource with which to meet these dues is this debt and allowance for damages. If there be failure in this appeal to Congress to obtain the payment of the sum embraced in this stated account between the United States and the Hart Farm School, together with the damages suffered, the institution will be destroyed and the service sought to be provided by the Government for itself forever must fail.

By observing the hearings before both Houses of Congress during several Congresses it will be seen that the principal ground of the school's contention has been and is for some definite sum for the support of the school; that is to say, for the equipped plant. It asked for $15,750, as the minimum allowance under which the institution could proceed with its service. After most patiently and carefully and cautiously considering the whole matter Congress allowed $12,000, and to withhold any part of that allowance would be to work its utter ruin. Professor Hart must get relief here and now.

The board, on page 17 of its tenth report, being for the year ended June 30, 1903, says:

Much has been said in reports of the board in previous years in regard to the services rendered by the Hart Farm School, and this need not be repeated. It has been * * * all of a commendatory character. * * * He [Professor Hart] asserted continuously that the payments he received did not equal his expenditures, and he asked repeatedly for increased remuneration. The board desired not only to meet his legitimate expenditures, but to make allowances for his services and for profits on his undertaking.

This was Professor Hart's understanding from the day he was besought by the Government to undertake this public service.

If, now, to the losses he has sustained by the unlawful detention of money due him by the Government and damages sustained by him, because of the unlawful and oppressive conduct of the Board of Children's Guardians, there be added a salary of $1,500 per annum (the same as paid the superintendent of the Reform School) for seven years (from November 11, 1897, to November 11, 1904), which amounts to $10,500, and his earnings in his profession for that entire period, at $2,000 a year, which he has had to put into these wards in addition to what the board gave him, $14,000, and a reasonable profit on the enterprise, which could be put at 10 per cent on the plant, in addition to wear and tear and 001918repairs on a capital of $30.000 for seven years. you have $21.000more, making in all--Accrued indebtedness$22,000 Damage by board's property clerk1,000 Damage by breach of contract, 1901-19025,000 Damage by loss of barns15,000 Salary for seven years 10,500 Earnings contributed for seven years14,000 Reasonable profits on enterprise21,000Total88,500

If from this total be deducted the $8,856.70 now asked as due beyond all peradventure, and upon which interest has been computed, there will remain due Prof. William H. H. Hart by the Government the principal sum of $79,643.30 and interest included for half the term that this debt has been accruing, viz, for three and one-half years, which amounts to $16,725.09. which, added to the principal of $79,643.30, gives the total debt due Prof. William H. H. Hart, principal of the Hart Farm School. by the Government, now $96,368.39, exclusive of the $8,856.70 now unlawfully withheld in the Treasury from the Hart Farm School.

If to this sum $96,368.39 be added the above-mentioned $8,856.70 and the full sum of $40,355.65, the entire sum received from the Government since the Hart Farm School was established up to the end of the last fiscal year, there is a total cost of the institution for the six years of its existence of $145,580.74, being an annual cost of $24,397.79, for a new training school which has proved a successful experiment in saving and educating dependent city children. This is a very reasonable cost for the service rendered and much less than the Government could have secured itself the same service in its own institutions newly established, as witness the initial cost for the first six years of its existence of the Girls Reform School, an institution in all respects analogous to the Hart Farm School. This full sum of $96,368.39 Professor Hart claims, and formally demands its payment.

The only practical hope of the Hart Farm School is now to come again to Congress and to say that not one of the several administrative agencies provided by it for the special purpose would give force and effect to its will crystallized in a solemn law.

If the language of the act of July 1, 1902, be mandatory and the evidence shows the Hart Farm School not in fault or default and the agency provided by the United States fails to execute its will according to the express terms of its law in the premises, then there can be no doubt of the liability here in this Congress of the Government for the full sum of this account stated as an accrued indebtedness under a specific appropriation. and for all damages suffered as set forth.

The Congress directed the board to contract for the care and maintenance of 60 wards of the board at the Hart Farm School at the rate of $200 per annum each, $12,000. For performing this service or standing ready to perform it, where the cost and loss to the school is the same in in either case for the entire service, the school can get the $12,000 and interest and damages, and the law assures it of no less.

002019

INTERPRETATION OF THE STATUTE ENTITLED "AN ACT MAKING APPROPRIATIONS TO PROVIDE FOR THE EXPENSES OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA FOR THE FISCAL YEAR ENDING JUNE 30, 1903. AND FOR OTHER PURPOSES," APPROVED JULY 1, 1902. TO WIT: "TO ENABLE THE BOARD OF CHILDREN'S GUARDIANS TO CONTRACT FOR THE CARE AND MAINTENANCE OF 60 WARDS OF THE BOARD AT THE HART FARM SCHOOL, AT THE RATE OF $200 PER ANNUM EACH, $12,000."

How is the intention of Congress in making this law to be ascertained; is the sole question that remains to be answered.

If the language is clear and admits of but one meaning, there is no room for construction. It is not allowable to interpret that which has no need of interpretation. (U.S.r. Fisher, 2 Crunch, U.S., 386; U.S.r. Hartwell, 6 Wall., U.S., 395; U.S.r. Wiltberger, 5 Wheat., U.S., 95.)

In such a case any departure from the language used would be an unjustifiable assumption of legislative power. (Newel Universal Mill Co. r. Muxlow, 115 N.Y., 170; Frye r. Chicago, etc., R. Co., 73 Ill., 32.)

If the words embody a definite meaning which involves no absurdity, and no contradiction between different parts of the same writing, then that meaning, apparent upon the face of the instrument, is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare is the meaning of the instrument, and neither courts nor legislatures have the right to add to nor take away from that meaning.(Newell r. People, 7 N.Y., 97.)

Under this first and plain rule of interpretation this law under consideration in all its parts speaks for itself, and this might end this division of the discussion.

But suppose there is failure to learn the intent of Congress in this statute by reference to the context, then let it be sought by the rule applicable to statutes in pari materiam.

Statutes which are not inconsistent with one another, and which relate to the same subject-matter, are in pari materia, and should be construed together and effect be given to them all, although they contain no reference to one another and were passed at different times. (U.S.r. Freeman, 3 How., U.S. 564; Converse r. U.S., 21 How., U.S.r. Walker, How., (U.S., 299.)

Not only may contemporaneous and prior statutes be considered in construing a given act, but a subsequent statute may often aid in the interpretation of a prior one. (Rolle r. Whyte. L. R., 3 Q.B., 298; Alexander r. Alexandria, 5 Cranch, U.S., 7; Cape Girardeau County Ct. r. Hill, 118 U.S., 72.)

If a thing contained in a subsequent statute be within the reason of a former statute, it shall be taken to be within the meaning of that statute (Lord Raymond, 1028); and if it can be gathered from a subsequent statute in pari materia what meaning the legislature attached to the words of a former statute, they will amount to a legislative declaration of its meaning and will govern the construction of the first statute. (U.S.r. Freeman, 3 Howard, U.S., 564; see also Cannon r. Vaughan, 12 Tex., 402.)

In interpreting a given statute, if a subsequent act on the same subject affords complete demonstration of the legislative sense of its own language, the subsequent act should be incorporated into the act construed. (Alexander r. Alexandria, 5 Cranch, U.S., 7.)

On page 25 of "An act making appropriations to provide for the expenses of the government of the District of Columbia for the fiscal year ending June 30, 1904, and for other purposes," approved March 3, 1903, in the statute covering this identical subject-matter Congress used the following language:

The Board of Children's Guardians is hereby directed to contract for the care and maintenance of 60 wards of the board at the Hart Farm School, at the rate of $200 per annum each, and for this purpose the sum of $12,000 is hereby appropriated, and 002120the Commissioners are required to report to Congress at the first session of the Fifty-eight Congress a general plan for the future care of the delinquent and dependent children in the District of Columbia.

This provision of he act of March 3, 1903, is, therefore, for the purpose of interpreting the act of July 1, 1902, to be read into it for the purpose of showing the intention of Congress embraced in that law.

The two are directly on all fours in pari materiam, and the two mean the same thing, and are mandatory and specific in their terms and purposes-the latter not one whit more than the former, and the former not one whit less than the latter.

PURPOSE AND OBJECT.It is a canon of interpretation that the legislative purpose and object object aimed at are to be borne in mind, and that the language susceptible of more than one construction is to receive that which will bring into harmony with such object and purpose rather than that which will tend to defeat it. (George r. Board of Education, 33 Ga.,. 344; The Emily, 9 Wheat, U.S., 381.)

Here in all this legislation the object and purpose of which was manifestly to provide for the care and maintenance of helpless public wards, for whom no provision elsewhere existed than in the Hart Farm School. And this canon of interpretation requires that such construction be given to the language of the law as will supply he institution with the funds appropriated for its support.

The question whether this language of the law in all its parts, to wit: "To enable the Board of Children's Guardians to contract for the care and maintenance of 60 words of the board at the Hart Farm School at the rate of $200 per annum each, $12,000" is mandatory, was the principal point in the decision in the Senate committee which resulted in the passage of the statute in pari materiam, approved March 3, 1903. and it was emphatically held by all the Senators that the language was mandatory and did no leave any discretion in the Board of Children's Guardians as to the payment of $12,000, or the removal of wards peremptorily from the institution. On pages 249 and 250 of the Senate Hearings on this very point, Wednesday, February 4, 1903, in the Appropriations Committee of the Senate, the following proceedings were had:

Senator Tillman: If you will permit me, Mr. Chairman, the only which seems to be in issue here is as to whether this Board of Children's Guardians have obeyed the law of last July or have disobeyed if they disobeyed it, why they disobeyed it. That is the only thing I see in issue.

Senator Allison. That is all there is.

Mr. Mann. We considered that we were following out the purposes and the words of the law to their full effect; that the only point which Congress had imposed upon the board was that it should pay $200 instead of $175; that otherwise the contract should be substantially--

Senator Allison. As before?

Mr. Mann. As before, with such guarantees as we felt necessary to sustain it.

Senator Allison. You gave no significance at all to the fact that there were sixty people mentioned in the act?

Senator Cockrell. And at a fixed price?

Senator Allison. At a fixed price?

Mr. Mann. We had no sixty children to put there.

Senator Allison. That is not the question I am asking. You gave no significance to the question that Congress had provided for sixty children? You say that the only point was $200 instead of $175?

Mr. Mann. Well, sir, it was to this effect, that we expected we would have the number of children increased. The average for the preceding fiscal year was about fifty-five, and we had added about ten to the average each year for two or three 002221years preceding. The probability was that if children remained at the farm, by the end of the present fiscal year we would have had an average of over sixty children there. Mr. Hart agreed that when our number reached sixty the compensation for the excess should be at the rate of $175.

Senator Allison. You do not seem to catch my idea. You had the same controversy with Mr. Hart about his compensation for the year before?

Mr. Mann. Yes, sir.

Senator Allison. That resulted in his finally saying that because of a reduction he had been somewhat embarrassed in his accounts, 2nd he came here and ask us for seventy-five, to which you objected; I mean you did not want any particular number. Then, after a thorough investigation of that whole question, we provided for sixty wards, at $200 each.

Mr. Mann. Yes, sir.

Senator Allison. Now, did you understand, or do you understand now, that under that specific provision you can put 1 person there or 59 persons there, or do you understand that that requirement of 60 children had some significance in the minds of the people who passed that law.

Mr. Mann. Well, sir, the significance was this, that up to the number of 60 children it was expected to be right that we should pay him at the rate of $200.

Senator Allison. Yes, but wait a moment now.

Senator Cockrell. Up to?

Senator Allison. Do you claim that under that provision you had a discretion which could exercise of putting 1 person there, or 10 persons, or 50 persons?

Mr. Mann. Well, if we had taken-

Senator Allison. I am not speaking now of the law. I am speaking of the moral obligation, of the morals of the question in dealing with Mr. Hart and his school.

Senator Cockrell. In view of the language used?

Senator Allison. In view of the language used in the statute?

Senator Cockrell. A fixed number at a fixed price? Now, where is your discretion? Where did you have right to change that in any shape, manner, or form?

Mr. Mann. There was never a suggestion I heard of-that we had discretion as to placing children there.

Senator Allison. Did you not see this law? Did you not read it?

Mr. Mann. Yes, sir.

Senator Cockrell. What did 60 mean?

Mr. Mann. It meant this-

Senator Cockrell. Did it mean 40? Did mean 30?

Mr. Mann. It meant that $8,000 had been added to our appropriation, and that up to the limit of paying at the rate of $200 per capita for 60 children we should pay him $200 per capita at that rate.

Senator Cockrell. Were there any of those things in that law? After all your wrangling and contending and deputing was not that you were to furnish him 60 children and to pay him $200 each?

And as showing what Congress intended in this behalf reference may be had to the proceedings of the Senate on February 10,1903, while the appropriation bill for the District of Columbia was under consideration:

The next amendment was, under the subhead "Child-caring institutions," on page 66 after line 22, to insert:

"The Board of Children's Guardians is hereby directed to contract for care and maintenance of 60 wards of the board at the Hart Farm School at the rate of $200 per annum each, and for this purpose the sum of $12,000 is hereby appropriated, and the Commissioners are required to report to Congress at the first regular session of the fifty-eighth Congress a general plan for the future care of the delinquent and dependent children in the District of Columbia."

Mr. Gallinger. Before this amendment is adopted I should like to ask the chairman of the committee whether the language is precisely or substantially the same as was in the appropriation act of last year.

Mr. Cockrell. No: it is a little more direct.

Mr. Gallinger. I was hoping that it was.Mr. Cockrell. That allowed them and authorized them to do it. This directs them to do it.

Mr. Gallinger. So the Senator from Missouri has no doubt in his mind I take it, that those in authority will do precisely what this amendment contemplates?

002322

Mr. Cockrell. They will have to do it. There is no question about it.

Mr. Gallinger. They did not seem to carry out the provision in the act last year.Mr. Cockrell. They are now directed to do it, and they will have to do it. The amendment was agreed to.(Vide Congressional Record, pp. 207.)

So Congress responded to this action of its intention as apply set forth in the act of July 1, 1902, by the passage of the act of March 3.1903 practically leaving them no discretionary power, and providing for withdrawing the whole subject matter from their control for the future. That was the answer of Congress to this question.

TIME IS OF THE ESSENCE OF THIS STATUTORY CONTRACT CREATED BY THE ACT OF JULY 1, 1902.At common law, time is always of the essence of the contract; that is to say, if a person promises another to do a certain thing by a certain day, in consideration that the latter will do something for him, the thing must be done by the date named, or the latter is discharged from his promise. (Sec. 251, p. 596, Clark on [interpretation of] Contracts, West Pub. Co., 1894.)

Having maintained the institution from the last day of July, 1902. at enormous cost for its statutory service, and having rendered so much of the entire service as was allowed to be rendered, and having stood ready at all times during the period so far elapsed to render the whole service, the right to the statutory compensation for the period passed is now perfect, and the school is discharged from any duty to render that service again, and the account stated is due and payable according to the statute, together with all other damages.

If this principle of law be true, and if the act of July 1, 1902, be mandatory, then there is no escape from judgment of immediate payment of this account.

Is the language "to enable," mandatory? The determination of this question in the affirmative ends this case in the school's favor. Indeed all that has gone before might have been omitted and this single question submitted to your committee for determination. If it be mandatory in part it is altogether mandatory because all that was done follows as the object of the operative words "to enable."

This is an appropriation law to carry out governmental functions in providing for public wards and so the appropriation is for a public service In this respect this item of the act of July 1. 1902, is the same in character as the other Government budget laws: the same as the river and harbor appropriation laws; the naval appropriation law etc. and the Board of Children's Guardians is the public servant to administer this public charitable fund and to discharge this public duty of succoring poor children, wards of the nation.

"To enable" them in any specific way to do a duty in their class of service is a command to do it. As the phase "to enable," "to direct," "to authorize" and the operative word "may" all mean equally in contemplation of law "must" or "shall" (being mandatory and not permissive terms), when used in a public statute in relation to a purely public service to be performed by a public agent and if this were not so no government could secure the performance of its functions. But this argument need not be further pursued. This very point, which really settles the whole case beyond all doubt or dispute, has been raised by another administrative officer and has been 002423determined absolutely at every point in the school's favor by the highest legal authority--an authority binding on the Secretary of War, and on the President of the United States, and on your honorable committee in this case and in others consimili casu.

Reference is made to the opinion of the Attorney-General of the United States transmitted to the Secretary of War on February 28, 1903, in response to his letter of February 6, 1903, citing the provision of the act of June 13, 1902 (32 Stat. L., 342), which authorizes the Secretary of War to purchase or build a dredge for use in habor improvement and maintenance upon Lake Eric. etc., and asking an opinion on the question whether the requirements of the law in question in respect to the work of dredge construction provided for "are mandatory in character or whether they are wholly or in part directory," and herewith is submitted a certified copy of that opinion, bearing the seal of the War Department, for your information, as the opinion has not yet been printed:United States of America, War Department, Washington, March 31,1903.

I hereby certify that the paper hereto attached is a true copy of a paper of record in the office of the Chief of Engineers, U.S. Army.G. L. Gillespie, Brig. Gen., Chief of Engineers, U.S. Army.

Be it known that G. L. Gillespie, who signed the foregoing certificate, is the Chief of Engineers, U. S. Army, and that to his attestation as such full faith and credit are and I ought to be given.

In witness whereof I have hereunto set my hand, and caused the seal of the War Department to be affixed, on this 31st day of March, 1903. Wm. Cary Sanger, Assistant Secretary of War.

Department of Justice, Washington, D. C., February 28,1903.

Sir: I have the honor to respond to your letter of February 6, in which you cite the provision in the act of June 13, 1902 (32 Stat. L., 342) which authorizes the Secretary of War to purchase or build a dredge for use in harbor improvement and maintenance upon Lake Erie; and calling attention to similar provision in the same status for the construction of dredges in connection with works of river and harbor improvement in Lake Michigan, you ask my opinion on the question whether the requirements of the law in question in respect to the work of dredge construction provided for are mandatory in character, or whether they are wholly or in part directory.

It is fundamental that the work of river and harbor improvement, and undertakings tributary thereto like the dredge construction now presented, are incidents of the national power to regulate navigation and commerce. The authority and initiative of Congress is complete and exclusive. An illustration of the exercise of this jurisdiction by Congress, directing and restricting the Executive, is shown by the fourteenth section of the act before us (32 Stat. L., 376), in which the Secretary of War is directed to cause preliminary examinations or surveys to be made respecting harbor improvement, and which requires such preliminary examination unless a survey or estimate is expressly directed, and provides that, in case after preliminary examination the particular improvement is not demand advisable, no survey or estimate therefor shall be made without the direction of Congress, etc. (Cf. sec. 2, act of March 3, 1899, 30 Stat L., 1149.)

In other words, in a particular and peculiar sense the will of Congress operates upon the Executive in a mandatory way in the law technically known as river and harbor bills. In general it is the duty of the Executive to carry such legislative mandates into effect whatever the Executive opinion may be as to their expediency or property, those considerations having been determined when Executive approval to the law has been given.

Taking up, now, he particular point of interpretation, the clause to be considered 002524is, "The Secretary of War is authorized to cause to be purchased or built," etc. The words italicized. like corresponding expressions in statutes are equivalent to the word "may", and the question is Are these words in a mandatory or permissive sense?

The ordinary meaning of "may" is generally permissive but as used in law it is often mandatory and equivalent to "shall" or "must". The rule been stated as follows:

"It is well settled that `may' in any statute is to be construed as equivalent to `shall' or `must' when the public interest or rights are concerned, and when the public or third persons have a right de jure to claim that the power granted should be exercised. * * * A duty is impliedly imposed to exercise it [the power]whenever the occasion arises. These terms are, then, in effect invariably invested with a compulsory force," etc. (Black, Interpretation of Laws, pp. 156,157.)

"But it would be difficult to believe that Parliament would ever have intended to commit powers to public person for public purposes for exercise or nonexercise in any such spirit," that is, as convenience or interest might dictate when a mere privilege or license is conferred upon private individuals. * * * But as regards the imperative character of the duty, it was laid down by the King's Bench that words of permission in an act of Parliament, when tending to promote the general benefit, are always held to be compulsory." (Endlich on Interpretation of Statutes, pp. 422, 423; see also Supervisors v. United States, 4 Wall., 435, and cases cited; Sedgwick on Construction. pp. 375. 377.)

The application of this rule, however,depends upon the context of the statute. The test is the intent of the legislature. (United States r. Thoman, 156 U. S., 353.) As to this elment of interpretation, it is proper to observe that the act under consideration authorizes the construct construction of many separate work of improvement, involving large expenditures, and in every case the provision is that Secretary of War may (in effect) undertake the particular improvements authorized. If the use of the word "may" in such enactments is permissive merely, and its force and scope extend no further than to authorize the construction of these works in the discretion of the Secretary of War, then by failure or neglect to avail of the authority conferred on him, or by adverse exercise of the discretion intrusted to him, he would defeat the exercise of legislative power in a matter committed to the exclusive jurisdiction of Congress and, manifestly, upon consideration of the whole subject and the entire river and harbor programme, intended to be carried into effect promptly and exactly.

It seems to me, then, that considering the words "is authorized," etc., in the above provision as equivalent to the word "may", that word must be construed to have the meaning of "shall", and is not to be taken to import mere permission or to grant an alternative or choice as if its meaning were "may" or may not." I conclude, therefore, that the clause of the act of June 13, 1902, above cited, is mandatory in character, and as such is binding upon the executive whose duty it is to carry the mandate into effect.

Very respectfully,P. C. Knox, Attorney-General. The Secretary of War.

The average number of wards maintained through the year can be ascertained by dividing the sum paid by the rate paid. viz. $200 each. This gives 18.7 as the average number of wards maintained by the board at the Hart Farm School throughout the year 1901-2. for which the board paid the Hart Farm School $3,741; whereas the law required the board to maintain 60 wards at the Hart Farm School and to pay for the care and maintenance of these 60 wards the full sum $12,000.

Now, therefore, this account is submitted for the immediate payment to the Hart Farm School of the difference between the sum appropriated by Congress for the school $12,000. and the amount actually paid to the school by the Board of Children's Guardians, $3,741.40, which amounts to $8.258.60, with interest from the date when the fourth monthly payment ought to have been made. viz., November 1, 1902, to January 1, 1904, a period of fourteen months, $598.10 making in all, due on this account January 1, 1904. the sum of $8.856.70.

The Hart Farm School made application to the disbursing officer of the Board of Children's Guardians for the payment of so much of this 002625sum as had become due under the law on March 5. 1903. and was refused payment. Application was then made to Auditor Timme,of the Treasury Department, who also refused payment. This action was thereupon appealed to the Comptroller of the Treasury, who also refused payment, and in the concluding part of his opinion said:

By what authority of law or claim of right the Board of Children's Guardians insisted upon and finally induced Doctor Hart to sign an agreement to support and maintain at his expense an agent of the board I am unable to comprehend. But they did exact it and Doctor Hart acquiesced and did so maintain such person, and practically turned over the management and control of the school to this person, the agent of such Board of Children's Guardians, until the 16th day March, 1903.

But all this does not help Doctor hart to demand that $1,000 a month out of this appropriation be paid him.

If the law is mandatory, about which I have decided convictions, but which would not be appropriate for me to express in this connection, because not necessary to the decision of the matter before me, he could by tendering to the Board of Children's Guardians a contract prepared under the terms of law, upon their refusal to have executed the same, proceed by mandamus and compel them to execute such contract.

If the law is mandatory, the clause therein providing for the execution the law is mandatory, the clause therein providing for the execution of a contract to support and maintain the wards, even granting that the board had a discretion as to the terms of such contract, which it undoubtedly had, was a discretion limited by their duty to enter into such contract when it was presented, safe-guarding the support and maintenance of these wards as provided by the law, and not their unlimited will, as appears to have been insisted upon in section 16 of the contract concluded on the 13th day of October, 1902.

If the law is mandatory, Doctor Hart can by proper proceeding in mandamus compel this board upon proper tender of a proper contract to execute it for the remainder of the fiscal yea. Moreover, if Doctor Hart had stood ready willing a t all times to perform his part of the obligations cast upon him by this appropriation act, and if he had been prevented therefrom by the failure, refusal, or neglect of the responsible officials of the Board of Children's Guardians, always assuming that the law is mandatory, he is not without remedy, but this remedy is not the paying him of $1,000 a month out of this appropriation for the performance of a contract which he has not executed, but is by an action of damages against this corporation for a refusal to execute a law mandatory in its nature,and which refusal to so execute has resulted in his personal damage. The measure of his damages is nor $1,000 a month ,and this appropriation is not liable to pay such damages, but would be his reasonable profits for the fulfillment of such contract if it had been entered into and would be recoverable against the corporation itself.

For the reasons above I concur in the decision of the Auditor, and the the same is fully approved.R. J. Tracewell., Comptroller.

Thus indicating that he regarded the law as mandatory, but stating that the remedy of the Hart Farm School in the premised was mandamus proceeding against the Board of Children's Guardians and a suit for damages against that board.

The Hart Farm School knew that the law was mandatory and the money in question due and payable to its principal in its behalf and it knew that no action in dam,ages lay against a purely public charitable board Government for wrongs inflicted in the supposed discharge of its public duties. Any tyro knows this to be hornbook law. The Hart Farm School also knew that the law read: "To enable the Board of Children's Guardians to contract for the care and maintenance of sixty wards of the board at the Hart Farm School, at the rate of two hundred dollars per annum each twelve thousand dollars." So that the mandate was to the board to take the initiative; and while it is true that mandamus lay against the board, the Hart Farm School, even to secure its rights under the law preferred rather to leave the matter for Congress to adjust than to haul the ladies and gentlemen of the board into court on a writ.

002726

The truth of the matter is that the Comptroller will not allow any money to be paid out of the Treasury that he can keep in there. Congress appropriates money for the public service time and time again. and the Comptroller refused to let it be paid. The only way to get the money. appropriated by Congress, is to use such clear and explicit language that the merest lay man can not mistake it, and for that reason the Hart Farm School begs that hereafter the money provided for its maintenance be appropriated directly to the institution, now a body corporate by legislative recognition and ratification and sanction, and that the District Commissioners be directed to maintain not more that 100 dependent Government wards in the institution; so that this item in the District of Columbia appropriation bill for the should read as follows:

For the Hart Farm School, $21,000, for which the District Commissioners shall maintain not more that 100 dependent children of the District of Columbia without additional cost for such maintenance.

This would be at the rate of $210 each per annum if the maximum number were available. If a less number were available, it would make no difference, since the Hart Farm School would have to be ready at all times throughout the year to "maintain" 100 wards.

On page 226 of the Hearing in the Senate appropriation committee, Wednesday, February 4, 1903, Mr. Mann, of the Board of Children's Guardians, say:

Probably no person is able to say that Mr. Hart has not lost money in maintaining the Hart Farm School; in other words, that the school has not cost more that the receipts from the Board of Children's Guardian.

And on page 17 of the tenth report of the Board of Children's Guardians of the District of Columbia for the fiscal year ended June 30, 1903, the board say:

The board desired not only to meet his legitimate expenditures, but to make allowance of his services and for profits on his undertaking.

This was the plain understanding with which Professor Hart began this public service by organizing and establishing the Hart Farm School. And under the admitted fact he claims that the Government is morally bound to repay all losses sustained by him in this public service together with a fair profit on the enterprise and fair remuneration for his services, if the whole thing is to be considered in terms of dollars and cents.

Professor Hart now owes outstanding debts incurred directly for the maintenance of the Hart Farm School. and for nothing else, amounting approximately to $22.000. He has used his entire professional earnings of $2,000 a year for nearly seven years in addition to these debts to keep the institution going. This makes $14,000 more. He has richly earned a salary of $1,5000 a year in this service during this period, making $10,500 more. Then there are the losses by the burning of the barns, $15,000 for it will take that sum to replace them, and those the losses of starved stock and other losses caused by breach of the implied contract for the year 1901-2, amounting to not less than $5,000, and the losses caused by the property clerk of the board to the Hart Farm School being not less than $1,000; and if a fair profit on the enterprise be allowed at 10 per cent per annum, including wear and tear and repairs, on $30,000 for nearly seven years, $21,000. There is now morally due Professor Hart, under the conditions plainly 002827understood with which he agreed to undertake this public service, the principal sum of $88,500. Deduct from this principal sum of $88,500 the sum of $8.856.70, being the balance due the Hart Farm School, with interest for the year 1902-3, and there remains due the principal sum of $79,643.30 accrued during the past seven years through the constant hostility of the board to the Hart Farm School. Interest for half the term, viz, three and one-half years, on this principal sum amounts to $16,725.09, which, added to the principal sum of $79,643.30, gives a total indebtedness of $96,368.39 on the part of the United States to the Hart Farm School, exclusive of the balance due for the fiscal year 1902-3, being $8,856.70.

Professor Hart was led by the awful condition of the colored children of this District to undertake the Hart Farm School work. The separation of the races here led to the exclusion of all colored children from the white public child-caring institutions except those which are penal, and there, too, in substance, by the administrative officers.

The Board of Guardians maintains this policy so that to-day it makes liberal contracts for the care of its feeble-minded white wards with two institutions, one in Virginia and one in Pennsylvania, both of which exclude colored children of the same class, and these poor helpless colored wards are slipped into the neighboring States and farmed out.

Nothing has been said of this, so far as public reports indicate, and no attempt has been made to secure the establishment of a suitable institution for these poor colored "naturals" here in the community to whichwhich they belong. The Hart Farm School has nearly 700 acres of land, and,if Congress desires it, suitable buildings may be erected and teaches, trained to undertake this service, in addition to its present work, in a group of buildings half a mile from those now in use.

No community can steadily progress upward that deprives itself of its children, because these children having received the training appropriate to their own social habitat imbibe and embody the traits of that community, and perpetuate and develop them when the elder men are dead. The progress of the community is dependent upon the support and preparation of the children to assume the directing power of the community, when they become men and women. Every child is a prospective asset to the community, whose loss, by any cause whatever, is irremediable social or community injury. The thing to do is to nurture and train the child, who belongs first to the community and then to its natural parents. The Board of Guardians proceeds on the diametrically opposite principle with respect to all its colored wards; its avowed policy is to banish them from this community, of which they are a native part and upon which they have perfectly acknowledged claims for nurture, maintenance, and education as "wards of the nation," to poor communities, already overburdened with their own helpless social units of the same class.

The putting out system, as it applies to the colored children sent outside of the District of Columbia, is virtual peonage. Children have been returned to this board and by it sent to the Hart Farm School who become demented, diseased, and lowered to the level of the brutes by the cruelties of those to whom they had been given, so that Professor Hart had to search long and painfully for the little human spark remaining in them and develop it by patient teaching. One of these lads was named George Palm: another who was subjected to frost bite of hands and feet in the terrible exposure of fishing for oysters 002928in an open boat in the winter in the bay is named Charley Boston. Professor Hart saved all the poor little fellows brought to the Hart Farm School in this condition, and has never lost a single life committed to him.

This system of placing out children outside of this District is nothing less than "the murder of the innocents" by "exposure" after the ancient Roman method. When Professor Hart undertook this work. Rabbit Stern objected that the children were too well fed; and B. Pickmann Mann. the secretary, said a year ago to Professor Hart's reply to that objection was: "If that is your idea of your duty and my duty to these poor colored children, you are not a fit person to have any control of them. After all each can only be trusted with his own kind, the white people with white children and the colored people with colored children."

This same member of the board draws a large salary as a clerk in the Interior Department, and, although a member of the board and controlling its appointments and contracts, is constantly importuning Congress to pay him $300 more a year as secretary of the board of which he is a member.

(See Senate Hearing. Wednesday, February 4, 1903. p. 301.)

COMPENSATION FOR SECRETARY OF BOARD OF CHILDREN'S GUARDIANS.Senator Allison. Is there anything in the bill that Mrs. Babson or the gentlemen here wish to call our attention to?

Senator Tillman. Is there any other matter?

Senator Allison. Is there any other matter? We did not expect to spend so much time on the Hart Farm School.

Mr. Miller. I wish to say that Mr. Mann has been since 1892, I think the time of the organization, in industrious labor, as you see by various reports made to you if you go over them, and that he has given a great deal of labor to the work and has never received a 5-cent piece. As you know, under the old organic law he can not receive compensation. I think it no more than fair to allow Mr. Mann something for his services for that length of time, and we have recommended it in our report.

Mr. Cook. It is only $300. He does a great deal of work.

Senator Allison. Three hundred dollars per annum?

Mr. Cook. Three hundred dollars per annum.

Mr. Miller. I understand the treasurer of the Reform School gets $600, and Mr. Mann renders all these services without compensation.

Senator Allison. The Reform School is under the Department of Justice?

Mr. Miller. I believe it is.

Mr. Cook. It is under that Department but under separate management.Senator Allison. We will consider that matter.

The matter was considered, and this thrifty member of the board has not yet gotten this annual stipend. To avoid abases of this kind, no member of the board ought to be selected as such who is a Government employee or who is the trustee or proprietor of any sectarian or child-caring institution, and this same rule ought to apply to the Board of Charities.

Every effort made by Congress to provide for the Hart Farm School has been bitterly fought by this board, although the school is indispensable to its work. When Professor Hart sought relief from this studied policy of the board, which was slowly but surely pressing him to death, and appealed to the Board of Commissioners and then to the Board of Charities for help and sympathy he was repulsed.

He could not understand the united hostility to the Hart Farm School 003029manifested so bitterly by the entire District government until the Hearings in the Senate Appropriations Committee, on Wednesday, February 4, 1903 (p. 246):

The committee on legislation was requested to take steps immediately to prevent the incorporation in the District of Columbia appropriation act of a clause which had been proposed to enable the board to pay at the rate of $20 per annum per capital for the care of 60 boys at the Hart Farm School, and the committee was authorized to solicit the cooperation of the Board of Charities and the Commissioners of the District in this endeavor.

And so, beforehand, the entire District government had deliberately organized to destroy the Hart Farm School, although they had already said, on page 226, Hearings in Senate Committee on Appropriations Wednesday, February 4, 1903:

If the Congress desires to support the Hart Farm School in full, as it supports the Industrial Home School, or to support it in large part, as it supports the Washington Hospital for Foundlings, or to aid it, as it aid it, as it aids the St. Ann's Infant Asylum, such support should be given for its specified purpose directly, without reference to the Board of Children's Guardians.

Again, on page 221 of the same Hearings:If the Congress, in the exercise of its judgment, decides that it is advisable to appropriate $12,000 or $15,750 for the maintenance of the Hart Farm School, regardless of the number of wards of the board who may be placed in the school, that is a matter not within the official jurisdiction of the Board of Children's Guardians. Such appropriations have made in the past, and are made yet. The Board of Charities and the joint committee of Congress on charities have advised against such appropriations, and their advice is not dependent upon that of the Board of Children's Guardians.

So with this united opposition of all those to whom the Hart Farm School was left by Congress to deal with and satisfy the school has been "done almost to the death" and comes here not for charity, but for justice and judgment.

As showing the absolute unfitness of this board to have any, the least, discretionary charge of colored children for any purpose, the following action of the District Commissioners is here presented:HART FARM SCHOOL.Executive Office,

Commissioners Of The District Of Columbia,Washington, January 3, 1900.

Dear Sir: Acknowledge receipt of your communication of the 20th ultimo, relative to the proposed transfer of the wards of the Board of Children's Guardians, now cared for at the Hart Farm School, near Fort Washington, to * * * Virginia, the Commissioners have to state that on the 23rd ultimo they had a conference with a committee of the said board on the subject, and transmit herewith a copy of the record of the proceedings on that occasion.

The Commissioners deem this matter of the utmost importance, and listened with interest to the discussion, but inasmuch as they have no jurisdiction over said board, they informed the committee that they would advise you, as chairman of the Senate Committee on the District, of the proceedings at the hearing * * *.

Very respectfully,John B. Wight,President Board of Commissioners, District of Columbia.

Hon. James Mcmillan,Chairman Committee on the District of Columbia,United States Senate. Washington, Saturday, December 23, 1899.

003130

The board met at 12 o'clock m.Present: Commissioners Wight and Ross and Captain Gaillard, assistant to missioner L H. Beach and acting as Commissioner in his absence.

Mr. W. John Miller. Rev. Louis Stern. * * * and Mr. B. Pickman Mann, of the Board of Children's Guardians, and Hon. Herbert W. Lewis, superintendent of charities, conferred with the Commissioners relative to the proposed transfer of the boys now all the Hart Farm School, near Fort Washington, to * * * Virginia * * *.

Mr. Miller stated that the Board of Children's Guardians placed some of the boys with Mr. Hart, under a contract made with him by said board, at the rate of $195 each per annum. * * * Mr.,. Hart at the beginning of the present fiscal year requested an increase to $210, on the ground that he could not take care of the children for any less. The board, after full consideration of the matter, decided that $200 was a liberal amount for that service, but Mr. Hart said he could not keep the boys at less than the amount he asked for beyond next February.

Mr. Mann read a letter addressed to the Board of Children's Guardians by the superintendent of charities, District of Columbia, under date of the 21st instant, in which he expressed the opinion that the transfer of any wards of that Board from the vicinity of the District of Columbia to a reformatory institution in Virginia would be inexpedient and probably lead to embarrassments, which the board can not afford to invite, as follows:

"Washington, December 21, 1899."Dear Sir: The contemplated transfer, by your Board, of colored boys, its wards, from the Hart Farm School to an institution conducted by the Negro Reformatory Association of Virginia, under the superintendence of John H. Smyth, near the city of Richmond, Va., places upon me the duty of making this final representation to you concerning the matter:

"I believe such action will be a serious mistake, unjustified by the single consideration of economy urged in its support, and likely to lead to embarrassments which the board can not afford to invite. It will place your wards beyond the reach of your frequent supervision, in the hands of a man who has given occasion for serious distrust, and subject to the direction of a society whose members are widely scattered and can not, therefore, be brought together readily and promptly for the hearing of any matters which you may wish to discuss with them. It will be to abandon the work which has received the approval of the persons from the District of Columbia best qualified to judge it fairly for the uncertainty of an experiment. It will cause the board to be made the defendant in one or more suits for the abrogation of its guardianship over children now at the farm school, before a judge who has expressed unqualified approval of the work as done at present. It will cause the introduction in Congress of a proposition to appropriate $10,000 for the care of children at the Hart School independent of the Board of Children's Guardians, a proposition which can be urged with every prospect of success. The success of such a proposition will cause a reduction of the funds otherwise to be placed at the disposal of your board by a corresponding amount. It will alienate interest and support which your board can not afford to lose, and will place the very existence of the board and the advance gained by six years of good work in serious danger.

"I think it will be well for you to keep in mind the fact that, appealed to in this behalf, the United States Senate has twice amended the District of Columbia appropriation bill in favor of the Board of Children's Guardians to the extent of $3,000 each time, and was only prevented from naming the Hart Farm School as the special recipient of the added fund by timely interference on my part.

"I think you will make a great mistake if you fail to give full consideration to the fact that the work of the Hart Farm School has excited the interest and received the hearty approval of the District Commissioners; that they do not consider the rate heretofore paid to Professor Hart as being excessive; that any transfer of the children to the Virginia institution would be contrary to their judgment, and that no estimate for the support of any part of your work can be made without their concurrence.

"I do not know whether you are aware of it, but it is a fact that in the last Congress a proposition was made to appropriate money to assist Professor Hart in the erection of buildings, and it had made considerable progress when, being referred to me, it subsided and was heard of no more, for the reason that it was held to be inconsistent with a plan to consolidate the child-caring work of the District in the hands of your board.

"I know that no institution can do what your contract with Professor Hart calls for for $10 per month per child; and I am not prepared to believe that you wish to shirk 003231any part of your responsibility to your wards, allowing them to participate in the charity of the State of Virginia or in the private contributions toward the support of the Reformatory Association of that State, or to be deprived of any vocation remaining open to them.

"You will recall that in the beginning Professor Hart was willing to accept a lower rate than you and I thought he would require while the number of boys under his care remained below 50. The matter was then an experiment with him, as it is now with the institution with which it is proposed you shall establish new relations. He found that he could not do the work at his own offer. The new institution will simply repeat his experience or will fail to keep its contract. There will be nothing to prevent a demand from an increased rate at the close of the present fiscal year. Then your board may stand again just where it stands now; unwilling to increase the rate and unable to make satisfactory arrangements elsewhere, and the human beings whose permanent welfare is in your keeping will continue to be minor consideration, while dollars and cents are paramount.

"The Board of Children's Guardians was created for the accomplishment of a great work. It has hitherto proceeded upon the theory that the accomplishment of the its beneficent purposes was the one important matter, to which the spending of money was merely incidental. Thus proceeding, it has enjoyed growth and prosperity and has established itself in public favor in a manner which is unprecedented in the history of the District of Columbia, or of similar organizations in the United States.

"Finally, I have the honor to recommend that the proposition to remove any wards of the board to an institution in the State of Virginia be abandoned, and that you join me in request for an appropriation for the purchase, equipment, and support of a farm upon which a farm school may be organized as a department of the work of your board.

"An early decision in this matter is of prime importance.

"Respectfully,"Herbert W. Lewis,'Superintendent Charities, District of Columbia."The Board Of Children's Guardians,B. Pickman Mann, Secretary."

Rev. Louis Stern said that he could add very little to what had said; that the committee was still inquiring; that Mr. Hart had probably not been as sagacious in the matter of procuring supplies as prudence would dictate. The food obtained for the boys seemed somewhat too fine. He, MR. B. Pickman Mann recited the circumstances which resulted in the contract with Mr. Hart substantially as follows: In the preliminary consideration, November 4, 1897, of the proposition made by Prof. William H. H. Hart to care for certain wards of the Board of Children's Guardians; that is, to take the first 25 children for $195 each, the second 25 for $175, and the number 50 for $155 each. A noncritical reckoning was made that fixed charges for interest on plant, for salaries of six employees, and for maintenance of employees would be $2,880 per year, and if to this be added $120 each for keep of children, $4,080, the cost per child would be $408 per year. Professor Hart was satisfied, however, to accept the rates proposed by him as an experiment. At the end of the fiscal year 1898, a revision of rates was made, the number of children having reached less 50, and a level rate of $185 was agreed upon, which continued throughout the fiscal year 1899. During the present fiscal year Professor Hart claimed to have been losing money at this rate, and asked for a higher rate, which he finally set at $210 per annum. No contract for the present fiscal year has been made, but an agreement was made to pay $200 per annum for the four months to end February 1, 1900.

With reference to the alleged admission of criminals at the Virginia penal settlement, Mr. Mann said that a boy of 12 years of age was admitted who had been sentenced to jail for a term of twelve years for setting fire to a barn.

The secretary to the Board of Commissioners read aloud a letter from Senator James McMillan, as follows:

December 20, 1899."My Dear Sir: I have been informed that the Board of Children's Guardians contemplate sending the dependent colored children of the District of Columbia to an institution established near Richmond, Va., where they will be thrown in contact with criminals.

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"Will you please inform me if such action is contemplated." I have always taken a great interest in the work of the Board of Children's Guardians, and I can not credit the statement that they intend to take an action which will seem to put an end to the usefulness of that board."Very truly, yours,""James McMillan."Hon. John B. Wight."President of Board of Commissioners, District of Columbia, Washington, D.C."

Commissioner Ross suggested that, as the Commissioners have no control of the Board of Children's Guardians, the board take occasion to confer with Senator McMillan on the subject.

When this action of the board became known to Professor Hart he telegraphed to the governor of the State of Virginia a request for information as to the number of convicts from the State penitentiary that were placed as a starter in this penal institution in Virginia, and the governor's private secretary telegraphed the answer, "seven." And this answer was placed in the hands of a lady member of the board by Professor Hart. The astounding fact is that poor, dependent colored wards of this community were by this board to be incarcerated in a penal settlement in a neighboring State. These facts are sufficient to show total incapacity for their office.

The public documents referred to in this statement, being the hearings on the subject of the Hart Farm School before the House subcommittee of the Committee on Appropriations on the appropriation bill of the District of Columbia, on Friday, January 9, 1903, and the hearings on the same subject before the subcommittee of the Committee on Appropriations of the United States Senate on the District appropriation bill, and the tenth report of the Board of Children's Guardians of the District of Columbia for the fiscal year ended June 30, 1903, are hereby transmitted to the District Committee of the Senate and prayed to be made a part of this statement.

In view of all the premises the Hart Farm School therefore requests this committee to secure the immediate enactment by Congress of a joint resolution

That the Secretary of the Treasury be, and he hereby is, directed to pay to Prof. William H. H. Hart, principal of the Hart Farm School, the sum of $8,856.70 from any money in the Treasury not otherwise appropriated.

And to report the following amendment to the urgent deficiency bill:For the relief of Prof. William H. H. Hart, principal of the Hart Farm School, for losses, services, and damages sustained in connection with the Hart Farm School in the care and maintenance of Government wards, $96,368.39.

And to report the following amendment to the appropriation bill making provision for government of the District of Columbia for the year ending June 30, 1905, and for other purposes:For the Hart Farm School, $21,000, and the District Commissioners may maintain not more than 100 dependent children of the District of Columbia in the school without additional cost for such maintenance.

Respectfully submitted.Prof. Wm. H. H. Hart,Principal of the Hart Farm School.