The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1896-11-11

Chairman Smith were read in rebuttal
of those read by Mr.. Henry.
Justice hfontgomery-Was there any
thing with the abstract to indicate that
the So names were stricken of the listT
Mr.. Maxwell-There was not. The
affidavit sets forth that all who offered
to vote were allowed to do SO without
question.
Justice MONTGOMERY give notice now
that / think that the abstract ought to
have been signed either by the parties
Amounted by the clerk or by those
legally appointed to take their places.
The provisions Of the election law in
regard to filing vacancies on the board
Of election was then read by Mr.. Max
well. who explained that Chairman
Smiths duty under this act#was perfect
IL nIain He combatted Mr.. Henry's
position that Smith was not legally
chosen chairman and quoted several au-
tboritias To prove that Smith was de
focto chairman and that therefore his
acts were valid, and that in the face Of
these facts the clerk had no power to do
otherwise than count the returns and give
certificates of election to those who had
n majority on the face Of the returns.
At the conclusion of Mr.. MaXwelTs
argument Mr. Henry again addressed the
court and resumed his speech at the point
where he was interrupted by Judge Mont
gomery.
Chief Justice Farcloth--Mr. Henry,
before you go further, / want you to
show me under what authority you ask
MS to enter upon this case de novo and do
otherwise than review the Judgment of
Judge Fufches.
Mr. HenryI rely upon section Z Of
the election law.
Chief Justice That is Il long section;
what part of the section?
Mr. Henry-The whole of 1.-THE gem
eral spirit of the section. We contend
that as the justice before whom the ac-
ton was originally brought has failed
to make any finding of fact we have a
right to come before this court and ask
it to go into the case de novo.
Justice Ayery-The Constitution, Art.
4, sec 8, defines the juridiction that per
tains to the Supreme court. Sec. II,
Art 4, provides that the General Assem-
bly, shall allot the power and all iurisdic
ton, that does not pertain to the Su-
preme court to other courts prescribed
in the Constitution. or, in other words,
10 courts created by or in pursuance of
the provisions Of the Constitution. Had
the Legislature the right to allot to a
single justice Of the Supreme court any
power or jurisdiction to determine the
right to the Office of registrar or judge of
election or the right TO count returns and
thereby elect a certain officer?
Mr. Henry didn't seem to understand
the proposition and started off on his
free ballot-and-fair-c0unt harangue. But
Justice Avery, at the first interruption,
repeated his question. Mr.. Henry look
| ell gave minute and then said: "Oh,
that's question for your Honors. And
| with that he came back to his little
| speech and waded in in earnest and the
court for time gave him up as hope
| less case and listened in silence.
i've got no authorities he said. Il
| don't want any. This is a new law.
| There was never one like it before and
| I've got no precedents to refer to. The
counsel on the other side may bring uD
their hoary headed authorities to sup
| port their position, but I've got none and
don't want any"
Then he went off into a lengthy eulogy
| Of the election law and for the third time
reviewed his argument that there was
no legal election machinery at the pre-
einct complained of.
Justice Furches- Evading the consti-
| tutional question and coming down to
| your argument, had / right to order the
| clerk to do something which the law com
manded him to do?
| Mr.. Henry Certainly not.
| Justice Furches-It being made per-
fcctly plain to me that the clerk had suffi-
cient authority to count the votes | could
not prohibit him from counting them.
| When | ann fully convinced that l am
wrong there will be no one more ready
to admit it than / will be-
Mr. Henry-Suppose it goes out that
here is new election law, passed for the
| purpose of securing fair and free cleo
ton and yet the courts will not enforce
this law but allow the people to be de-
frauded Of their ballots?
Justice Montgomery-Mr Henry, has
it occurred to you that your position tends
to make one man the absolute ruler of
elections in this State-the clerk of court ?
Ii we can compel him to do an illegal
thing he can do it without our authority.
Mr.. Henry made no attempt to reply
to this, but contented himself with few
more choice paragraphs from his late
best campaign speech on the freedom of
the ballot, closing with IN appeal for
purity in elections.
The court will probably render it's de-
cision in the case to-day. That Justice
Furches' judgment viii be affirmed no
one doubts, unless it be Mr.. Henry.