The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1898-12-02
A CONTEST OVER
OFFICE Of SHERIFF
To Be Argued Monday in
Supreme Court.
AN INTERESTING CASE
THE VOTE ON THE FIRST COUNT
RESULTED IN A TIE.
SECOND COUNT DEFEATED DEMO Graf
The Supreme Court Called On to Decide
Case Involving the Law of Floatable
Streams 1t Was Argued
this Week.

The case OF Cozart against Fleming,
from Granville, has been set down for
argument on next Monday afternoon at
1 o'clock. 1t involves the title to the
office of sheriff of Granville county, and
therefore comes within the Rule of the
Supreme court for a hearing at an early
a day as practicable. L T. Hicks, of
Henderson. represents the plaintiff, and
4. w. Graham and John ". Graham
appear for the defendant.
This is an interesting case. The re-
cont election for sheriff in Granville
county resulted in n tie vote, and the
clerk of court decided that there was no
election, and Il new election must be
ordered.
Thereupon suit was brought by Cozart,
the populst candidate, asking that the
clerk be restrained from ordering Il new
election He also petitioned for new
count. alleging various irregularities in
the election.
The restraining order asked for was
granted by Judge Undertake, returna-
HE November /. 1898. When the case
came on for hearing the clerk reported
that on n recount Cozart had come out
two votes ahead, and upon that Judge
Timberlake declared CoZart elected
sheriff.
From this decision an appeal was
taken by Fleming the Democratic candi-
date. and the case was brought up to
the Supreme court Fleming bases his
appeal on the ground that the recount
was mere matter of evidence to go
before the jury on the trial Of the case
and that Judge Timberlake had no juris-
dicton to make the order declaring
Cozart elected.
Argument in the case of Hutton
against commissioners of Burke county,
on appeal in the Supreme court. was
commenced on Wednesday and concluded
yesterday morning Messrs. Shepherd
and Busbee for plaintiff and Judge A.
c. Avery for defendant.
This case is one of great interest TO
many persons i'll the counties of Burke,
Caldwell end Mcdowell. In 1895 the
Supreme court held that the portions of
Johns and Catawba rivers running
through these counties are floatable
streams, or nayigable highways. for
floating logs. In 1897 the Legislature
passed an act allowing the board of
commissioners of these three counties
to organize board of managers whose
duty it should be to keep these streams
clear for tioatage, and that the board
50 organized should be empowered TO
charge a toll for all logs Heated by mill
men. and devote the tolls primarily to
the Improvement of the streams, and to
apply any incidental profits to bridge
building in the three counties.
Intt oh, Il ic,t af-
torneys. Shepherd and Busbee, brought
suit and got ii restraining order in the
court below and an order continuing
that order to the hearing. From this last
Judgment Judge Avery. for the defend
ant commissioners Of Burke. appealed to
the Supreme court Mr.. Busbee con
tended before the Supreme court that
the act upon its face was unconstitution-
al, because it provided for keeping open
fords and public and private crossings,
and for devoting the incidental profits
to building bridges; and for the further
reason that it provided for charging tolls
before requiring n specific sum to be
expended in improvements, or directing
specified Improvements to be made
Judge Avery contended that the act
was constitutional no matter how its
meaning was interpreted but that if til,
meaning were doubtful the court wout
be bound To adopt that construction
which brought the act within tho
purview of the legislative powers III,
insisted that having power TO regulat t,
floatable streams the Legislature coult
provide for keeping them in good condi
ton by taxation, involuntary labor OF
tolls, and if by tolls could give indiyidu
ais, private corporations or governmental
agencies the power to keep"up such high
ways and retain the incidental profit af
ter Dayivng for the work done upon
them.
Judge Avery further contended in hi,
argument that the Legislature of Nortl
Carolina could regulate and control al
navigable streams within the State. pro
vided there should be no interference
with vested rights and subject to no 9th
er restriction, except such as were navig
able for sea-going vessels. The streams
navigable for such vessels ara the only
water courses that are subject to the
control of Congress under Article !, sec
tlon =, clause 3 Of the Constitution OF
the United States, known as the Com
merce Law. As TO these streams tho
State had no power to regulate com
merce but did have power to make i'm
proyements TO facilitate commerce. anC
therefore as to them the State in assert
ing authority to impose tolls must pro
vide for facilitating commerce in ordel
10 entitle persons proceeding under its
legislation 10 make such charges.
A FRIGHTFUL BLUNDER