Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1873-12-05
TEgEI SPECIAL TAX EvJUNCTI n
CASE.
E'flc Case 9pcned by Ncssrs. Kudd
and Strong.

Before the United States Circuit
Court yesterday in Metropolitan Hall,
Judges Brooks and Bond presiding,
! the case Of Alfred Self, ct. al.. VS..
: D ,vid a. Jonkins, originally set for
! Wednesday, WAS taken up, and upon
the announcement Of readiness by the 9
were discharged until Monday next.
The case for the plaintiff was opened
by Walter J. BuGd, Esq, of Philadel-
phia, in an argument of more than two
hours duration, which strongly pre-
. sented the grounds upon which the
plaintiff rested his case.
He read the Constitution of North
Carolina, and the act authorizing the
issue OF bonds to the different Railroad
Companies Of the State, and argued
from the opinion OF the Supreme Court
and the testimony of the defendant,
| David 4. Jenkins, before the Fraud
Commission, that the bonds were legal
and received the endorsement of all the
departments Of the government of
North Carolina. He read q number
| of cases to show that the Circuit Court
had jurisdiction against the defendant,
as Treasurer of the State. although not
! against the State, 60 noBailae.
| He then preceded to read the acts
| disposing of the special tax money
! raised by the act authorizing the issue
! of bonds, and urged that all such leg
! islation was repugnant both to the
: Constitution Of the United States and
| Of North Carolina, and of no effect.
! He further contended that If the defen-
/ dart could not be enjoined as Treas
urer, he could be proceeded against
individually for paying out the special
tax money for general purposes.
! To pursue the argument Of the coun-
Fsel in all its ramifcations would be
impossible in the absence of steno-
graphic reporter.
|. Mr.. Strong, in behalf OF tho deien-
dant, maintained these propositions:
I. That no relief could be granted
against the defendant personally, in
a much az the equity presented IN the
bill was for a payment of the debt out
/ OF the money in the Treasury, and no
: claim was therein made on him. The
remedy asked for in the prayer was an
Injunction against him as an officer
ONLY, and to restrain him from doing
Official acts only, and that 10 redress
was sought out of his personal means.
II. That the suit being against the
used to restrain him in his official ac-
ton was in substance, and i'll fact n
suit against tho State, and in direct
amendments to the Constitution Of the
United States. That this principle was
fully established by the cases Of Gov
ernor OF Georgia vs.. Madeazo, Peters
I. :. Rep. 123 and the more recent
i case OF Kentucky vs. Dennison "a
= Howard 66.
LII. That the State was necessary
party and no order could be made at
fectinc the money in her Treasury, un-
/ less she was before tho court, and as a
State cannot De sued tho relief must
De denied. Fox which positions were
cited as authorities, Coisou vs.. Milan
don 10, Howard 113, Green vs.. Susan
J. CowIe8 i'll, and other cases.
IN. That the case of Osborn VS.
Bond Of the United States, which was
commented on, fully sustained the de-
: fenceas the injunction was then award
ed before the fund passed into the
State Treasury, Chief Justice Marshail
.. who delivered the opinion OF the Court,
saying: ,,..,., s .h;,, ,,s
, the agent ouid pay over the money
i Immediately to his principal and would
thus place 1t beyond tie reach Of The
tnaoceat l1aJ'tY since Ais principal Is
not crD2cs1u5Lc 10 l1tC. -.....-e
|, The casa viii be continued this
morning, Messrs. Kemp p. Battle and
Jno. Calling arguing for the defendant,
and r. C. Badger, Esq, for the plain
4 tiff. Itis, not thought probable that
The Hon. ReYerdy johnson, who also
/ appears for the plaintiff, will speak be:
fore Monday, as tho other counsel will
doubtless occupy the attention OF the
Court to-day.
The petit jury was dicharged until
!. Monday,--Ea!eisb Nesfa