The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1897-12-25
If You Do You Will be in Con-
tempt Of Court.
STILL ANOTHER DECISION
NEW COMMISSIONERS AWARDED
THE OFBIcH
ONLY ONE POWER CAN TAKE IT AWAY
hs United States Supreme Court Must Re-
Wrse the Decision Written BY Judge
Douglas Commissioners Draw
Two Months Salary.

Douglas New Commissioners Draw
Two Months Salary.
Per the present ct least. the Railroad
Commission contest is at an end.
not u final end, but sort Of cessation
ef active hostilities, as it were. 1t
might be called an armed truce were it
not for the fact that the old Commits
sioncrs have had their arms taken away
from them.
This was done BY another decision o
the Supreme Court yesterday morning
For just as the News and Observer had
predcted, there were further develop
nents in the case, and developments Of
quite sensational kind when the Su-
preme Court met at II O'Clock.
As this paper intimated would be
done, the writ Of error and supersedeas
bond granted by the Chief Justice were
brought before the court on motion
to set them aside. And out of this mo-
ton, as was also predicted, came a
sweeping opinion by Judge Clarke sus-
tanning Judge Douglas decision hand
cd down on Thursday. The opinion sets
forth that the plaintiffs having been
hducted into office under a decision, and
an execution issued from the court, they
are duly installed as Railroad Commits
sioners per sc, entitled to all the privi
leges and enactments purtaining to the
office, and that any interference with
them in the enjoyment of their rights
by the defendants in the case, or any
other person or persons whatsoever,
would render such persons so interfering
In contempt of this court. From this
Judgment there was no dissent.
The nearing began with a motion from
Capt. w. III. Day, attorney for Caldwell
and Pearson, to set aside the writ of
supersedeas issued by the Chief Justice.
on the ground that the judgment of the
Supreme Court was final-only State
matters being involved in the case.
Judge Whitaker, for the Wilson's,
made counter motion that the execu-
ton of the court now in the hands of
the sheriff, not having been executed,
be recalled.
This motion was argued by Mr.. Robt
o. Burton, on an intimation from the
Chief Justice that the court would like
to hear argument. He explained that
there was no formal writ of supersedeas.
He said that supersedeas upon an APP
peal operates to stay the execution of
the decree APPEALED from; that it is not
obtained by virtue of any process of
court, but follows from the compliance
by the appellant with the provisions of
the act of Congress in that behalf In
this case a writ Of error had been is
sued and bond given, and no further writ
was necessary to restrain the new Com
missioners from putting into execution
the judgment of the court.
A number of the Federal cases were
cited by Mr.. Burton, the case. of Foster
vs.. Kansas, quoted from in yesterday
mornings News and Observer being
dwelt upon at length. He contended that
the defect in that case was that the
surersedeas was not passed until after
the judgment of the court had been
executed. This he contended had not
been done in this case.
Judge Douglas: "Is it not held in the
ease Foster VS.. Kansas that no exc
eItion was necessary to oust Foster
and put Moore in possession Of the
sffice?"
Mr.. Burton: "It is. But after the
Supreme Court issued the execution and
q supersedeas was perfected before its
execution. then all further proceedings
are stayed, no matter whether there be
an execution or not. And as to recall
ing the supersedeas, or the writ of error,
that can't be done. 1t is an act of the
Chief Justice. The court cannot now
recall it, nor even can he himself, as
for that matter. Once issued it goes
into effect and can be dismissed only
by the Supreme Court to which it is di-
rected."
Justice Montgomery: IF this bond
and writ arc beyond the power of this
court, why do you ask that the execu-
ton be recalled"
MIR. Burton: There being writ out
In the hands of an officer, the court
should direct him as to what disposition
he should make OF it. 1t can't direct
him to enforce it-fhat would be bring
ing this court and the United States
Supreme Court in conflict; it should
therefore direct him to return it,"
Mr.. Day replied by saying that In
that case no order was necessary. But
he contended that the sheriff had al.
ready executed the paper put into his
hands. He had the greatest abundance
of time in which to do so, he said, and
ne did execute it, no matter what re
turn he may now make. "He went tC
the Railroad Commissions office with
Caldwell and Pearson; he left them there
telling them he would go for the keys
They waited, he did not return and SC
they went in. We ask that the motion
TO recall the execution be not granted.
is,uh l1Ill Cn tIfe llI0
Z siohs. AN hour later the court handeu
DOWN the follow;nu npanimolle opinion |