6 modation at the State Prison at this time, as the following communication from Captain A. C. McAllister will plainly show:

SAN QUENTIN, January 3d, 1878.

Hon. Paul Shirley, Chairman of State Prison Committee: DEAR SIR: In response to your inquiry, as to the capacity of the State Prison, I would respectfully state that we have constructed, within the last year, additional cell-room for six hundred and sixty-eight prisoners.

There are now fourteen hundred and thirty-three prisoners on hand, for which we have an abundance of room, and can accommodate two hundred and fifty additional prisoners without unnecessary overcrowding. I am, sir, very respectfully,

A. C. MCALLISTER, Capt. of the Yard, C. S. P. From this communication it will be seen that the accommodation is sufficient for one thousand six hundred and eighty-three convicts, which is over two hundred in excess of the largest number of convicts ever confined in our State Prison. It should be borne in mind, also, that there is ample room for further extension of the Prison accommodation should occasion require it at San Quentin; and that an increase of cell and prison capacity can be made and maintained there at a much less expense than any other place in the State.

There is shop-room enough already provided at San Quentin for the employment of from one thousand to twelve hundred men; and power enough to run six hundred feet of shafting at no expense whatever to the State for fuel, as that article is supplied from the waste of the different shops.

There is sufficient clay on the Prison grounds for the employment of four hundred men in brick-making for four years, and the adjacent land, which is of the same character, can be bought at any time at reasonable rates, should the State require it, as it is only used for grazing purposes. One hundred acres of this land would furnish an inexhaustable supply of clay.

Those who expect to make a Prison a source of revenue to the State, in our judgment, must meet with disappointment. No effort should be spared to make the Prison as nearly self-sustaining as is possible; but that it can ever be made entirely so, with due regard to the object for which prisons are instituted, is beyond all reasonable expectation. The opportunities, however, of converting convict labor into cash, is as good at San Quentin as it could possibly be were the Prison located in any other portion of the State. The ease, cheapness, and dispatch with which the raw material can be transported there, and the manufactured article retransported back, is of itself no inconsiderable item in the expense of conducting a Prison that is, at all times, likely to have from one thousand to one thousand four hundred convicts. The ample power and shop-room already provided for is a matter of great consequence in considering this question.

Take the location of this Prison from a sanitary point of view, it is safe to assert that there is no better location in the State, if on the continent. It will be seen by the last biennial report of Dr. J. E. Pelham, the Resident Physician, made to the Board of Directors, for the years ending June thirtieth, eighteen hundred and seventyseven, that the whole number of patients treated in the hospital was only four hundred and sixteen. Of these, one hundred and eightythree were in the hospital from the previous two years, or prior to

the period covered by his report; consequently it will be noticed that two hundred and thirty-three, of all the patients treated in the hospital, were admitted within the two years referred to by his report. It will also be seen by this report that the whole number of deaths during this period was thirty-two. When we consider that there was an average number of one thousand one hundred and sixty-one prisoners, and that there were only sixteen deaths per annum, it will be unnecessary to say anything further about the healthfulness of the location.

When selecting a location for a Prison, or any public institution, the question of climate is one of paramount consideration. While there is a good deal of conflicting testimony concerning the climate at Folsom and vicinity, it is generally conceded by persons familiar with the location of the Branch Prison, but who now have no interest in its construction, that the heat during the Summer months is intensely oppressive, and that in such a community as a Prison would bring there, intermittent and other fevers would prevail to a great degree. This being the case, we are satisfied that it would not only be inhuman to consign men to such a place, but it would be the part of folly to do so, as their labor would be worth nothing for any purpose at all. If punishment were the only end in view, it might be well to select Folsom as the place for inflicting it, but for the legititimate purposes of a State Prison, we are of the opinion that it is not the place.

In our judgment, another good and sufficient reason why the State should not incur the expense of the proposed experiment at Folsom at the present time is, that one State Prison is all that California needs, or that she ought to have, for many years at least. When the increasing number of prisoners makes another Prison of any kind necessary, it should be one for the treatment of the young men, or rather boys, a large number of whom are now among the convicts at San Quentin. Some such institution will probably be a necessity at some future time, and it would seem proper to leave the selection of a location for such an institution to those whose province it will be to deal directly with the question.

All of which is most respectfully submitted.

4

of an amount of money aggregating at least one hundred and seventy thousand dollars, without account books of some kind. The evidence we have before us of General Gardner's correct business habits will not support the imputation of such astounding incapacity as such a state of facts would imply.) Without regular accounts, his official settlements with the Secretary of State, Treasurer, Controller, and the several County Treasurers, would be an absolute impossibility. We assume, therefore, that he did keep rugular accounts, showing what public moneys were received and what disposition was made of them, and) that for reasons which we think will be sufficiently shown hereafter, (has chosen to regard such accounts as his private property, and hence failed to turn them over to his successor with the other records of his office.)

We cannot regard the official accounts which General Gardner kept of the receipt and disbursement of public money-the only means by which his official settlements with other public officers could be verified-as in any sense his personal property. They were as much public records as any other record of his office which was actually turned over to the present Surveyor-General.

It is true that in the record kept of applications to purchase sixteenth and thirty-sixth sections and lands in lieu thereof, and also in the patent delivery book, a certain number of applications made and patents delivered are marked "paid," but the amount, date, to whom paid, and for what, is left to inference; and where the word "paid" is omitted we are left to conjecture that the particular application or patent was not paid for. But for proferts, authenticated certificates, duplicate certificates of purchase, for certifying contested cases to the District Courts, for copies of papers furnished, or for any other business for which he was by law required to demand and receive fees, and which must certainly have aggregated a very large sum, there is no record whatever to be found to show that he demanded, received, or even charged the fees which he was required by law to demand and receive. (See Section 8 of an Act entitled "An Act to provide for the management and sale of lands belonging to the State," approved March 28th, 1868, Statutes 1867-8.) Under this Act he was required to demand and receive certain fees for fur nishing the documents enumerated above, and it was equally his duty under the law to account to the State Treasurer for the same. In order to approximate the actual business done by the SurveyorGeneral's office during General Gardner's term the Commission were compelled to count the number of proferts in the letter books and the number of duplicate certificates remaining on file, and obtain from Wells, Fargo & Co. such information as the records of that office afford' relative to the number of packages C. O. D. sent by the Surveyor-General's office by express.) This involved an expenditure of time and labor wholly unnecessary, had not General Gardner either appropriated and suppressed the official accounts of his term or beeng uiliy of such amazing incapacity and negligence as to keep no fee books at all.

We are satisfied that the fees derived from proferts, certificates of purchase, and duplicates, and business of like character, of which there is no account, must have amounted to a very large sum. And we are also satisfied that the amount derived from these sources which we have been enabled to discover is merely an approximation, and falls far short of the amount actually received.)

The result of our investigation thus far we now lay before you.

APPLICATIONS TO PURCHASE SIXTEENTH AND THIRTY-SIXTH SECTIONS AND LANDS IN LIEU THEREOF.

We find that seven thousand one hundred and two applications of this class were made; the fees upon which amount to thirtyfive thousand five hundred and ten dollars. Five thousand seven. hundred and thirty-eight of said applications, the fees upon which aggregate twenty-eight thousand six hundred and ninety dollars, are marked "paid" upon the tract books, but in one thousand three hundred and sixty-four cases the fees are not marked "paid." 'paid." The amount delinquent on these applications aggregate six thousand eight hundred and twenty dollars. Section fifty-five of the Act herein before mentioned (Stats. California, 1867-8, page 523,) reads as follows: "Each application for school lands under the provisions of this Act shall be accompanied by a fee of five dollars. The Surveyor-General, in addition thereto, shall demand and receive the same fees allowed the Register of the State Land Office for like service; and all fees collected by him shall be paid into the State treasury."

If the record kept by General Gardner himself proves anything whatever, it proves distinctly that in no less than one thousand three hundred and sixty-four instances he did deliberately violate the law, of which he was a sworn officer, by receiving and filing applications unaccompanied by the legal fee. But the testimony of B. B. Redding, John Mullen, F. A. Hyde, and others, tend to prove that in at least two hundred and fifty-three instances fecs aggregating one thousand two hundred and sixty-five dollars were actually paid to General Gardner, while his record of applications omits to show that such fees were paid. We are of the opinion that there are many more such cases, as the testimony before us shows that it was the practice of the office to collect closely and promptly for services performed.

That the Surveyor-General is responsible on his bonds for the whole amount appearing delinquent on these applications (six thousand eight hundred and twenty dollars) there can be no doubt.

CERTIFICATES OF PURCHASE. )

General Gardner was required to demand and receive for each certificate of purchase a fee of three dollars. (See Section 8, Act of March, 28th, 1868, Stats. California, 1867-8, page 509.) We find that he issued three thousand eight hundred and fourteen such certificates. The fees amount to eleven thousand four hundred and fortytwo dollars. By the same section of the law he was required to pay into the State treasury all fees collected, but there is not, so far as we are able to find, evidence to show that he accounted to the State Treasurer for a dime of the above amount.

DUPLICATE CERTIFICATES.

Under the section of the Act of March twenty-eighth, eighteen hundred and sixty-eight, above referred to, the Surveyor-General was required to charge three dollars each for duplicate certificates. We

find that one hundred and fifty-five such certificates were issued, the fees upon which amount to four hundred and sixty-five dollars. General Gardner is delinquent for this amount also.

PATENTS.)

The Surveyor-General's fee for the issue of patents under section eight, exclusive of the Secretary of State's fee, and until the listing fee of the State agent at Washington was abolished, was three dollars. The records of the office show that three thousand two hundred and twenty-three patents were issued, the fees, including Secretary of State's and listing fee, aggregating twenty-four thousand seven hundred and seventy-two dollars and eighty-six cents. Of the above number of patents sixty-six are not marked "paid." The fees upon these amount to five hundred and four dollars and twentyfive cents. And of these unpaid patents nine were taken out by General Gardner himself, as attorney for the patentee. The fees due amount to seventy-eight dollars. Five were taken out by A. N. Guptill, General Gardner's deputy; the unpaid fees amount to twenty-six dollars. Isaac Ayer, a clerk of General Gardner, obtained two patents, the unpaid fees amounting to eight dollars, and J. O. Wanzer, another of General Gardner's clerks, obtained one patent, upon which there is four dollars delinquent. Thus (a fraction over one-fourth of the unpaid patents were received by General Gardner and his deputy and clerks, and over one-fifth of the amount delinquent is due from them.) We imagine that comment on this state of facts is entirely unnecessary.

PROFERTS,

For official statements in contested land cases certified by the Register to District Courts for trial he was by law directed to charge a fee of ten dollars, prior to the first of January, eighteen hundred and seventy-three, when the Codes went into effect. The Political Code, section five hundred and one, reduced the fee to three dollars. The whole number of proferts issued was one hundred and fifty-nine, and the fees upon the same amount to six hundred and ninety-four dollars. No account whatever of the receipt and disposition of the funds derived from this source can be found.

d.)

CERTIFIED COPIES OF PAPERS, ABSTRACTS, AND PAPERS FURNISHED FROM THE OFFICE.

Up to the time the Codes went into effect, the Register was allowed fifteen cents per folio for all copies of papers on file, and where the certificate and seal were attached, fifty cents additional. After January first, eighteen hundred and seventy-three, the fee for copies was reduced to ten cents per folio. This formed a large and lucrative branch of business. All persons who were engaged in land business, either as attorneys or as agents engaged in the purchase and sale of State lands, required abstracts, copies of papers, and in many cases, where such papers were to be used in the Courts, the certificate and seal were necessary. We feel assured that the fees derived from this source must have been large, but there is not a book, document, account, or memorandum of any kind in the office to show what dis

position was made of the money. An estimate, based upon the receipts of the Surveyor-General's office from these sources during the first six months of the present Surveyor-General's administration, shows the receipts to average about sixty dollars per month at the lowest estimate. Mr. Twitchell, a gentleman who has been connected with the office for fourteen years, estimates the receipts as high as one hundred dollars. (Taking the average (eighty dollars), we have nine hundred and sixty dollars per annum, or three thousand six hundred and forty dollars for the term of four years.

We examined General Gardner as a witness on this and other points relative to the receipts of his office. He stated that the statement furnished by Wells, Fargo & Co.'s office at Sacramento would show every dollar received for proferts, certified copies and papers, uncertified abstracts, etc., excepting those papers which were delivered personally. But the statement nowhere shows what proportion of the "C. O. D." receipts were for proferts or for other purposes; and General Gardner professes himself unable to distinguish between them. We are of opinion that it was his duty to so have conducted the business of his office as to have been able to inform the Commission of the exact amount derived from each source. General Minis has conclusively demonstrated, by the method he has adopted, that such a plan is entirely feasible. Nor can General Gardner state what amount was derived from those papers which were delivered to parties in person. But taking the amount reported by Wells, Fargo & Co. as correct, there is at least one thousand five hundred and fifty-three dollars and fifty cents to account for, if we balance the proferts, which General Gardner asserts are included in Wells, Fargo & Co.'s statement, against the copies of papers, certified and uncertified, and abstracts, which were delivered to parties personally.

General Gardner also caused to be printed a book for the use of Mr. D. K. Zumwalt, of Visalia, and caused the swamp land tracts of Tulare District to be copied into it by the clerks of his office. Zumwalt testifies that he paid General Gardner one hundred and fifty dollars for that work. General Gardner states that he paid the amount received for this book over with his fees. But this work was not the legitimate work of his office, and if he did pay the amount over it should have been specially mentioned.

General Gardner holds receipts from Secretary of State Melone for eighty dollars fees paid over, for which the books of that office fail to give him credit. We conclude that these receipts are evidence of the payment of this sum of money into the Secretary of State's office, and have included it in the amount we find to have been paid over by General Gardner to that office.

The query suggests itself to us as to what the Secretary of State has done with the money?

We present a recapitulation of the statement herein made: