The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1895-08-29
"UTTERLY FALLACIOUS."

The American Law Register and Rs
view, which stands high, takes the same
view of the decision in the case of Carr
VS.. Coke that the News AND OBSERVER
has maintained all along. It's more Sc
we're than the criticisms contained IN
this paper, saying that the position
taken is utterly fallacious," and that
the opinion of Judge Montgomery con
tans 'dogmatic inanities." The article
in the Register and Review is as follows:
The Supreme Court of North Carolina
has recently decided, over the strong dis
sent of Avery and Clark, u, that when
an enrolled bill has been duly signed by
the President of the Senate and Speaker
of the House, court cannot go behind
this record and inquire whether, in the
passage of the bill, it was fraudulently
enrolled before it had been read before
each house the number Of times required
by the Constitution, though that fact is
apparent On the face of the journal of
proceedings kept by each house in &C
cordance with the requirements of the
Constitution: Carr V. Coke, % s. E.
Rep is. The real effect Of this decision
will be better understood from the fact
that it appeared from the journal that
the only bill similar to the one signed
by the presiding officers had been intro
duced in the House of Representatives,
passed first reading, was tabled on second
reading, and was still to be found among
the files of documents. No such bill had
ever been introduced in the Senate. 1t
would be difficult to conceive of more
fragrant abuse of legal principles.
Montgomery, j., in his concurrlng
opinion, stated the bearing of the ques-
ton at issue very clearly, but untorIu-
tunately erred in his solution of it. 1t,
he said, brought to light "the more than
possibilities of two most serious menacts
to popular government: The first one,
that Of the power of corruptible or in
competent clerical force, or that of
depraved and hired set of lobbyists, or
both together, to tamper with the acts
and proceedings of the Legislature, and
have that certified to be law which never
was, in fact, enacted; the second, that
of the power of defeated and unscrupu
lous politicians, when stung by the loss
of Office, or desire for revenge on their
political enemies, to practically repeal
the legislation OF their successful oppo-
nents by resorts to the courts upon mere
allegations that there was fraud in the
passage Of the acts or in their ratifca
ton, and by procuring iDjunctions upon
affidavits obtained possibly through
bribery, or through the ignorance or
carelessness of the oath maker. By the
decision of the court, the latter danger
the far most to be dreaded-is avoided.
The presiding officers of the two houses
may, by taking sufficiency of time and
by close scrutiny and rigid examination
of the bills and wrappers, prevent fraud
and error in ratification, If such thing
be attempted, while for the latter danger
no limit or restraint can be found, except
in the conscience of men who have never
cultivated a sense of either generosity or
Justice"
With all due Difference, the latter con-
tingency is not the most to be dreaded.
By lawsuit, no matter how baseless or
vexatious, no matter how corruptly car
ried on, the truth stands a chance c.
being brought to light; but, according to
the ruling in this case, it can never be.
The only remedy the people have against
a statute foisted upon them as this was,
is to repeal it at the next session, and
meanwhile suffer its evil consequences.
The repeal, too, might be prevented by
the very means that secured the passage
of the bill in the first place. The posi-
ton of the learned judge is therefore
utterly fallacious; and it is pleasure to
be able to contrast with his dogmatic
inanities the vigorous language Of the
dissenting opinion of Clark, j., which
effectually disposes Of the fancied in
volatility of the certifcation of the bill
by the presiding officers of the Legisla-
ture. 1.-THE signing" he says, ''has no
law making power in itself, but is mere
certifcation of what the law making body
has decided, and, like all certificates,
may be impeached for fraud or mistake;
otherwise the certificate is more power
full than the authority doing the act
which is certified. If we could conceive
that the two presiding officers of any
Legislature should purposely certify that
a bill has passed which had, in fact, been
defeated, this could not nullify the action
of the two houses. If it could, then
they, and not the General Assembly, are
the law making power. Certainly, for a
stronger reason, when the signatures of
the presiding officers are procured by
trick and fraud practiced on them, there
cannot be such virtue therein as to make
law against the vote of the body"
This, however, did not prevent the
court from adhering to its former de-
cision when the question was raised
before it second time; and in Wyatt V.
Wheeler & Wilson Mfg Co. IN. c., %
S. E. Rep, 1870, it simply affirmed the
decision in Carr " Coke, with the same
difference of opinion as in that case.