The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1897-12-28
THEY DRAW BACK PAY
FIRST ACT OF RUSSELL'S NEW
RAILWAY COMMISSIONERS.
Two Motions Made in the Supreme Court
I'm this Case-Both Denied, Justice Clark
G Rendering an Aggressive Opinion-A De-
cision Of the Supreme Court I'm q Case of
Indictment for Nom Papment Of Taxes in
Favor Of the D~efendOnt.

l. Rendering An Aggressive OpiDAOn-A Ds-
cision Of the Supreme Court In q Case of
Indictment for Non-Papmsnt of Taxes in
Favor of the DefendOnt.
Especial to The Messenger.)
Raleigh, NC, December 24--Before the
supreme court this morning there were
two motions in the railway commission
case. One by Mr.. Burton, OF counsel
for J. w. Wilson,, was to recall the
writ to the sheriff placing Caldwell
and Pearson in possession Ofthe railway
commissioners office. Mr.. Day made
a motion TO recall the supersedeas or
writ of error to the United States SUI
preme court The argument for the
recall of the writ to the sheriff was
upon the ground thai the case was in
the Jurisdiction of the United States
supreme court and that the state su-
prerne court car a no further ac-
ton pending the decision Of the United
States court. Plenty of precedents
were shown for the issue of writ of er-
TOR and it's approval by the Chief JUS
tice.
Gull tOch DOtlI CII IiOIiOlo III
der advisement and soon filed an opin-
ion which was written by Justice Clark.
It is very aggressive and says: This
is a motion 10y the defendant, j. w.
Wilson, to recall the execution which
issued to put L. G.. Caldwell in posses
sion of the furniture, rooms and other
tangible property belonging to the
railway commission. Caldwell moved
to set aside the supersedeas proceed
ing or adjudge them irregular. We are
of opinion We have no power ito set
aside a writ of error or pass upOn the
regularity thereof. We are also of
opinion that the judgment of this court
ex proprio vigore pleced Caldwell in
possession of the office ait the time
judgment was filed. He having al
ready qualified no process was neces-
sary for that purpose. He is in full
possession of the same and entitled to
exercise it's duties and draw the salary
thereto attached from date of his ap-
pointment. Judgment took effect i'm
emdiaitely upon being filed and is not
superseded by the subsequent writ of
error, regular or irregular. (FOster
against Kansas, 112 U. s.. Caldwell
being in office by virtue of the judge
ment of this court, an attempt by the
defendant to exercise it's functions or
to interfere with the full and free eX-
ercise thereof by Caldwell and any
attempt by any one else to interfere
by alleged legal process or otherwise
unless and until the supreme court of
the United States shall reverse the
Judgment of this court will (be con
tempt Of this court. We decline to
make any order recalling the execu-
tion. Both motions are refused"
Governor Russell was with Caldwell
and Pearson a good e today. They
each got a warrant for $500 salary from
the auditor, who had refused to pay
J. w. and Otho Wilson after the gov
ernor appointed Caldwell and Pearson.
J.. C. l.. Harris, of counsel for the
Wilson's, was asked this afternoon
what he proposed to do in the matter
and said that as soon as possible ap-
"AiA ~ ANo
Judiciary for action and to vitalize the
federal law. He says Caldwell and
Pearson are not in contempt. The lat
ter were this afternoon cited to ap-
pear January Goth before the United
States supreme court.
The supreme court filed an import
ant opinion this afternoon in the case
of State against Bryant, from john
ston. This was a test case by consent
to see whether the provision of the
revenue act for imprisonment for on
payment of taxes is constitutional.
Court says: Tax payers may pay any
time before last of November ait least,
without mourning any penalty or pun
ishrnent, n sheriffs, under provisions
of Section .3S, or revenue act, la levy
and collect whenever justified reason
ably by the facts in the case. Law re-
Quires payment of taxes, but we do
not see that the legislature intended
to adopt any harsh rule. In passing
revenue laws, the legislature takes no.
tice Of habits of people and of the
season III WHICH tney can pay WlCnOu
sacrifice. In the present case it does
not appear that the defendant has re-
fused to pay or hat the collector has
yet demanded yme or thai the tax
is in danger of being lost. We must,
therefore, sustain the decision of the
court below that the defendant is not
guilty. 90
The supreme court filed opinions in
the following cases: State against
Lee, from Edgecombe, new trial, and
Allen against Allen, from Halifax, re-
versed. Justices Montgomery and
CLARK dissent from the supreme courts
opinion in the case against ex-Clerk S.
p. Satterfield, and say that the evil