The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1896-03-06


Argument was begun in the Supreme
Court yesterday morning in the case
Of Cowan VS.. Fairbrother, from Durham
county.
ian. /. 1894, Al. Fairbrother and his
wife. M. II. Fairbrother, sold the Dur
ham Daily and Weekly Globe to John
WILDER Jenkins for $4,000. In the sale
of the paper Al. Fairbrother contracted
not to publish or be in any way con-
nected with the publication OF any
paper in the State of North Carolina
for a period of ten years, and Mrs. falr-
cloht agreed not to publish any paper
in Durham county for the same perlod.
Subsequently Jenkins sold the prop
erty. plant, good Will, subscription list
and contract to George W Watts, who
afterwards leased the property to Ii. H.
Cowan. who now conducts the Durham
Globe.
After leaving Durham in 1894, FAR
brother began the publication OF the
Lynchburg Daily Earth, publishing
semi-Durham paper in Lynchburg, Va,
and attempting to compete with the
Globe. THIS venture failed and he was
compelled to leave Lynchburg. lie
went back to Durham, and IN the name
of his brother-in-law, A. Hatchett, the
Durham Times was begun; but that
paper soon bit the dust. lie then
went to Pottstown, Pa, where he and
his wife edited paper; they had trou-
BILE with the proprietor, and went
across the street and set up an opposi-
ton paper, but in few days, on ac-
count OF alleged scurrillous publica-
tions, were compelled to leave Potts-
town. They came back to Durham,
hoping TO find a refuge there, and
bought the Durham Recorder from +.
G. Hackney.
r. I'll. Cowan applied for and obtain
ed temporary order restraining FAIR
brother and his wife from publishing
paper in Durham. The case was ar
gued before Judge Graham, at Oxford,
who made the restraining order per
manent. Fairbrother appealed to the
Supreme Court, and the case is now be-
ing argued.
Mrs. Fairbrother is now publishing
The Recorder, at Hillsboro; Al. Fair
brother is said to be somewhere fur
Their South.
Fuller, Winston q Fuller; Boone.
Merritt IL Bryant, and Manning
Foushee, are attorneys for the plaintiff.
Maj. w. A. Guthrie appears for the
defendants.
Mr.. Victor s. Bryant made an able
argument for the plaintiff.
Major w. A. Guthrie opened the case
for the defence.
He bases the contention of the defen-
dant mainly upon section 20, Art. /, of
the Constitution Of North Carolina,
which embraces section 10 of the old
Declaration Of Rights (which ante
dated the first Constitution Of the
State), and declares that ''the freedom
of the press is one of the great bull
syarks OF liberty, and ought, therefore,
never TO be restrained" to which the
additional words were added in the new
Constitution of 1868, "but every indi-
tidual shall be held responsible for the
abuse Of the same" This addition,
Major Guthrie adds, is simply declar
alton of what the common law. regard
ing libel and Islander was before the
Constitution WIS adopted.
His Rain contention is that the con-
tract entered into is invalid, on the
ground that it has the effect to restrain
Fairbrother from publishing a news
paper, and TO deprive him Of an inalien-
able right conferred upon him by the
Constitution. The defence contends
that publishing a newspaper is not a
trade or a business, but is a personal
liberty, common to every citizen, and
cannot be sold, limited on restricted
as TO length of time or place.
In the course of his argument, Major
Guthrie quoted the following from a
Il banquet Id 1883, when the well known
journalist SAD: There is no such thing
as an independent press, unless it is in
the country towns. You are all slaves.
You know it, and / know it. There is
not one of you that dares express an
honest opinion. The business of New
nisbed These were confessions of iudg-
to lie outright, to peryert, to yillify, to
fawn at the feet of Mammon, and to
sell his country and his race for his
daily bread. We are intellectual pros
titutes"
The plaintiff contends that the con
tract is valid, and not "in restraint of
trade" and IL does not inhibit the
Constitutional provision against the
abr5dgement Of the freedom Of the
press, rs contended by the defendant:
that the owner and editor Of news
paper can sell his outfit and good VII
as the owner of any other busine
can dispose of il. The plaintiff is ua-
able TO apprehend why man who htta
built up newspaper business cannGl
sell that az; man can sell any othar
Business; that the publisher can 81
his contract restrain himself, both as
10 limited time and limited territory,
from competing with the purchaser
of his business.
In the brief filed By the plaintiff
they made this answer to the defen-
dant's contention regarding Article !,
Section 20 of the Constitution:
'"Fhis construction of this section
sweet scented as it ii with the valor Of
our forefathers lis, to stay the least
original, as syell as novel, in its con-
ception. Mindful Of that great and
oter-shadoWing public policy which,
in every civilized country, sustains, as
infexible, the right of every person of
full age and competent understanding,