Goldsboro weekly argus. [volume] (Goldsboro, N.C.) 1885-1909, 1895-04-11

ernor to an Action of Inquiry into
the Validity ofthe Act:
RALEIGH, April 5.-The Su-
preme court to-day hands down
it's opinion in the Assignment
act.
The court holds that the act is
limited to conditional sales, as
signments, mortgages and deeds
in trust made to secure pre- exist
ing debts and obligations, and
that mortgages of the nature of
the one before the court, grow
ing ou- Of the transaction itself
and executed for a present con-
sideratiou, do not come within
the operation Of the act.
The act was not intended to
embrace transactions where the
debt grows out of the transac-
ton itself and is for present con-
sideration.
Attorney General Osborne to-
night makes the following reply
to Governor Carr's letter:
DEAR SIR-Your letter Of
yesterday was received this
morning. In it you request me
to investigate the question
whether proceeding cannot be
instituted in behalf Of the State
against the Secretary Of State as
q nominal defendant to restrain
him from furnishing for publica-
ton the act known as An Act to
Regulate Assignments and other
ConVeyanceS of Like Nature in
North Carolina until it could be
determined whether it passed
the Legislature, and whether its
enrolment was procured by fraud
or forgery,
In compliance with the re-
quest of Your Excellency I have
investigated the question, as far
as [ could within the limited
time suggested in your letter,
and have reached the conclusion
that no such proceeding as the
one mentioned by you can be
maintained
After thorough search I
can find no authority in our
State or elsewhere TO sustain it,
and I cannot see how the State
as a person distinguished from
it's ciUizens are interested in the
question.
''As you are aware, the action,
if brought, would have to be
| brought in behalf of the State
with you as the relation of the
plaintiff and me as counsel.
There is, in my opinion, nothing
in the official duties Of either of
US which requires US to bring
proceedings in any court to null
lify an act of the Legislature
whether legallyepassed or not.
But I do find authority in our
own State for proceeding of
another character which may eff
feet the desired purpose and af-
ford d remedy to our people
against the Infamous outrage
that has been perpetrated upon
them. | think any citizen, in be-
half of all others, may bring the
action you suggest. Such pro-
ceeding in the nature of man
damus has been allowed in our
courts in the case of Scarborough
VS.. Robinson, 81 North Carolina,
page 400. Perry VS.. Whitaker,
II North Carolina, page 375 is
somewhat analogous.
Besides, [ find authority in
other States to the same effect.
Among others, State VS.. Cum
ningham, 50 Wisconsin, page 80,
(35 American State reports, page
% Wise VS.. Bigger, 20 Vir-
ginia, page 259.
There is nothing to prevent
Your Excellency as a citizen, in
behalf Of all other citizens, from
bringing this action, and if you
will permit me to go behind du-
ties as your legal advisor | take
this opportunity to say that you
as our most prominent citizen
are the proper person to do SO.
IF Your Excellency should de-
eide upon the course recon-
mended the whole matter will
come before the courts for de-
cision, and I, therefore, express
no opinion upon their right or
power to go behind the ratifica-
ton of an act of the Legislature
and inquire whether Or not the
requirements of the Constitution
were observed in it's passage,
but confne myself to the ques-
tion asked as to the method of
procedure.
| Yours reSDectfullv.