The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1895-10-26
DOWD ON THE STAND
THE FUSION DIRECTORS SUING
FOR POSS SESSION OF THE
PENITENTIARY.
PLAINTIFFS COMPLAINT AMENDED

And Judge COble Rules That They
Must Pay the Coss of the Action to
Da'e-,The Day Taken up With Arr
gHment Between COunsel--Late in
the Afternoon Senator Dowd Gets In
Few Words of Testimony.
The trial of the quo warranto pro-
ceedings, in which H. O. d ckery and
the appOintees of the last Legislature
sue for possession Of the State peniten-
tiary began yesterday
After the running debate on issues
and motions, by counsel yesterday, the
plaintiffs asked leave TO amend their
complaint
Judge Coble allowed them to amend,
but only after they had paid the costs Of
the action up to date
The following are the issues to be de-
termiDed:
l. We're the relators of the plaintiffs
or either of them, and if so, which of
them, duly and legally elected by the
General Assembly directors Of the State
penitentiary.
q Are they, or either of them, if so,
WnleA, 6llglOl6 10 Salu OI1ceS.
3. Have the relators of the plaintiff,
or either of them, if so, which, duly
qualified as directors by taking the oath
prescribed by law.
4. Do the defendants or either of
them, if 80. which, unlawfully hold the
Office Of directors of State penitentiary.
The twelve ''tried and true" who will
sit upon the case, are J. w. Pegram,
J. r Walton, r. E. Talton, E. P. Wiggs,
L. Fl. Wood, r. B. Todd, John W.
Smith, J. s. Lowry, j. W. Underhill, G..
G.. Ferguson, W. a. Richardson, J. Wal
ter Collins.
ALI the morning the counsel on each
side cited authority and made motions
and, most of all, "objected." "
Messrs. Shepherd and Busbee, attOr-
neys for the defense, made these princi-
pal motions
~ To dismiss the action on account
of the misjoinder of plaintiffs and de-
PENDANTS, as each plaintiff must recover
on the strength of hi own title, and be-
cause eight plaintiffs cannot recover
seven offices.
And if court refuses to dismiss, then
that the action be divided so that the
respective claims Of the plaintiffs be
severally tried.
''2. To dismiss the action because the
Board Of Directors Of Che State peniten-
tiary is not made party 10 this action"
Judge Ooble over ruled both motions.
The attorneys for the plaintiffs at
tempted to introduce a printed copy Of
the House journal
The defense objected, aud showed that
almost on every page of the printed
journal there were caring errors, and
that it by no means corresponded with
the original in the Secretary of States
office. The journal of the Senate does
not even show that this penitent airy act
was ratified.
Judge Coble ruled that the plaintiffs
could only introduce certified copies of
the journals as evidence.
One authority after another was cited
by each side enough to make a young
library of sheep skin volumes. The
Meares Cooke case and the mortgage
law" decision were most frequently re-
ferred to. And the Inability to go be-
hind the ratification" bobbed up time
and time again.
State Senator Carey Dowd, of Neck
lenburg, was put on the stand in the
afternoon
He sat in the witness chair for hours,
while the lawyers were fighting over
the admission of his evidence.
The defense was trying to prove that
the act creating the new penitentiary
board of directors was passed after the
directors were elected.
Judge McRae referred to the Cook VS..
Meare8 decision, saying that "we must
presume it was rightly done, that the
ratification TOOK place before the cleo
ton. Why, those very questions were
discussed before the Supreme court in
the Assignment case We stand by the
journal, as the official records"
Judge Coble: II do not think that
they followed the journal, for the jour
nal showed that the act was tabled"
at last, late in the afternoon when the
sun was getting low, Senator DOwd was
allowed to put in a word or two of testi-
mony.
He said he was a member of the SEN
ate, and was present the morning OF tho
last day of the session, March 18th, 1895.
According to his recollection, no bills
were ratified that morning
Cross examined: According to the
best of my knowlege and belief no acts
we're ratified that morning" He said
he was member of the Senate commit
tee on enrolled bills, through whose
hands az bills Passed before they we're
enrolled.
And this was all he was allowed to
say