The news & observer., 1896-12-11


Gates OF the clerks Of Caswell, Nance
Franklin, Nash and Wilson, appofnted
commissioners for those counties. Oge of
said clerks is the Republican Judge5elect
of the Fifth district, three are PopFilists
and one Democrat, and there mas sbeeh
no trouble until this Republican clerk OF
Granville attempted to thwart tha VIII
of the people.
HEARING OF THE WRITE
The writ OF babeas corpus, re-
turnable before Chief Justice Faifcioth,
was argued before him at Cham
bers in the Supreme court room yester-
day afternoon, from to O'Clock. Aeessrs.
J. Crawford Biggs and t. llamer, or
Oxford, represented the petitioners and
Efessrs. L. G. Edwards and 3. ). ;Roys-
fer Of Oxford, and Mr.. J. Il. Batsheior,
Of Raleigh, appeared for the defendant
Skies. j
The argument was opened by MIR.
R;prs who asked that the action pe dis
missed on NE ground that the abplica-
tion for the writ of habeas corpus was
defective in the following particulars;
The name of the officer who detained the
prisoner is not inserted; no copy of the
warrant under which he was comsmitted
N iail is annexed it does not sfate in
what the alleged illegality consists, nor
tbaf the legality of the Imprisonment has
not already been adjudged.
These. he contended, were three fatal
defects and the court ought TO dis
miss the action as it had nothing upon
which to proceed.
The Chief Justice, however, decided to
Al
this point later.
Col. Edwards opened the case Cor the
defendant Skies He read all the papers
in the case and then argued on tne suf-
foiency of the answer made by Clerk
Skies He said it all dependeg upon
section 5 of the new election lawF This
law requires the clerk to certify that there
are two hundred elector signers a1sd that
one hundred of them are free polders
| who have petitioned for these additional
commissioners. 1t is the clerk gnd the
clerk alone who is to judge in THIS mat
ter. In this case Skies says two hundred
electors did not sign this petitlon and
that one hundred of them were not free
holders. The judge cannot act, eol. Ed
wards held, except upon the certlscate OF
the clerk. The judge has 10 eight to
summon the clerk to show ause.why he
has not certified to the petition. As the
clerk cannot be ordered to do isnything
in this matter, the only remedy is to pun
ish him for violation of his oath end mall
I feasance in office. The judge thad no
! right to interfere and every ordeS he has
issued in this case is invalid ang irregu-
lar.
The ACT itself, he said, svas, un-
constitutional because it imposes quail
I fications for county commissioners which
the constitution never prescribed and
/ because, thereby, it DISTINGUISHES ma
jority of the voters Of the coznty, It
provides that the two additiohal COM
missioners are to be of a different politi-
cal party from majority Of TIE Board
! of county commissioners. This excludes
all of those belonging to the party having
a majority on the Board, from being eligi-
BILE to the office and is, therefore. uncon-
stitutional.
Mr. T. Ianier, for the plaintiff, then
replied to Col Edwards argument in re-
gard to the constitutionality &c the act
by pointing out the difference between
appointiye and elective Offices. The
whole matter he said, turned ,upon the
SGuestion as to whether the clerk did
what was required of him bys the law.
Mai. Batchelor next addressed the
court in behalf OF the defendant He
started out with the statement that the
whole proceeding was out of order and
wrong from the very beginaing. lie
said it had no foundation units the clerk
complied with the duties required of
him. To compel him by mandamus, he
held, was the proper step to have taken.
| The defects in the application having
already been argued by Mr.. Biggs he
| now directed his attention, in his re-
marks at the conclusion of MFR. Batche-
! lors argument, to the questions Of appeal
and jurisdiction. In the operSng of his
remarks, Mr.. Biggs alleged shat the
| whole action of the clerk in Che matter
! showed the animus of his refusal to
certify to the petition. He recited the
facts Of the case and said THAI it was a
! wilful disObedience Of the orcer of the
| court. Appeal, Mr.. Biggs held to be
| the only remedy, and that habeas cor
| pus proceeding was irregulas and not
| the proper instrument to .test the
| judgment of the court, even il the sen
/ tence is erroneous. A Judgment for con
| tempt is in force until reversed by an
| appellate court, and where gn appeal
/ lies no WITH OF UdDpaS CORPUS Cdu De
| granted. Neither can a habeAs corpus
| be used as a writ Of error.
| In regard TO the punishment imposed
| upon Skies, Mr.. Biggs arguea that ii
was not excessive, nor punitorys but sim
ply to enforce compliance with the order
| of the court.
/ As to the constitutionality of the law
| touching the appointment Of commits
/ sioners, he said it had nothing to do
with this case. The contempt was com
mitted under the law as it stands and
| the question OF constitutionaaty must
not be considered in contempt proceed,
| ings. 1t was a wilful failure To perform
purely clerical duty ordered by the
| court. Every law is constitutional un-
| til adjudged to be otherwise. The find
ing Of facts by Judge Grahams he, said,
was conclusive, and the cleric had no
| discretion in the matter.
Mr. Biggs' argument was clear, CON
else. and logical. He had thoroughly
studied his case and he presentad it with
/ ability.