The progressive farmer. [volume] (Winston, N.C.) 1886-1904, 1898-04-05
The OYSTER s
Ex-JudEe Allen, of GOIdsborO, Defends
the Famous Eastern Oyster Cases.

the ''oyster cases." upon which you
have commented unfavorably.
By the Laws of 1898, Oh. 287, Sec. 4.
&c was made the duty Of the several So
Iicitors upon a certain affidavit being
filed by five persons to institute an &C
ton in the mama of the State to vacate
certain entries of oyster beds.
It is unnecessary to discuss the wis
dom of this act further than to say
that it was passed because it was be
lieved that many natural oyster beds,
which were not subject to entry, and
which belonged to the whole people,
had been f~raudulently entered, and
the act was intended to correcG this
evil.
It failed of its purpose because the
Supreme Court decided in State ".
Spencer, ia N. c., no, that the desig-
nation of the waters subject to entry
was determined by the Board of Shell
Fish Commissioners under the Act Of
1887. and that this fact could not again
be inc hired into.
Bsfore this decision about seven hun
dred actions had been instituted under
the Act of 1898 in Pamlico county, and
about one hundred in Carteret county.
In these actions the ahdavits we're
made according to the statute, and
when this was done the statute said
sit shall be the duty of the solicitor
forthwith to institute action, " etc.
The solicitor could not then be
blamed for doing what the Legislature
commanded, and it should be remem-
bered that no provision has been made
for a fee to the solicitor, and no such
Zee has aver been charged in any bill
of costs.
He was certainly not interested in
bringing the actions, as he did his
work for nothing.
Toe solicitor then required the clerk
to issue the summons for the State and
the sheriff to serve it.
These officers were compelled to per
form this service or forfeit their bonds
and the service being for the State,
they could not demand their fees in ad.
vance (see Code, vol. 2, Laws 2758)
Non suits were taken in all the actions
because Of the decision in State v.
Spencer, and it was at first adjudged
that the counties pay the costs, but
this was reversed on appeal. Blanch
y. Simmons, 118 n. O., 9.
Judgment was then entered in all
the actions against the State for the
costs, and this was twice affirmed by
the Supreme Court in Blount v. Sim.
mons, 119 N. O., so, and in Blount v.
Simmons, 100 N. O., 10.
Upon both of these appeals the Treas,
urer paid the costs of the Supreme
Count but refused to pay the costs of
the Superior Court, because he said he
had no authority to do so. Upon the
second appeal, the Supreme Court ex
amined the items ia the bills of costs
and directed that all improper charges
be stricken out, and afterwards in the
Superior Courts in the Pamlico cases
the bills of cost were corrected to con
form to the opinion Of the Supreme
Court. No change was made in the
bills OF costs in the cases in Carteret
as there was no appeal in those cases.
We then instituted the action of Gar
mel v. Worth, to enforce payment OF
the costs as corrected by the Supreme
Court, in which the Supreme Court
substantially decides that it requires a
special act of the legislature to pay a
sherif's fee Of so cents. You will OBJ
serve that we have simply sought to
o the legal fees of the clerks and
sheriff for services rendered. We
thought the State liable for this, be-
cause under the same circumstances
a private person would have been
compelled to pay, and the Code, sec.
$50 says: ''In all civil actions prose
cuted in the name Of the State, by an
officer duly authorized for that purpose
the State shall be liable for costs in the
same cases and to the same extent as
private parties"
These cases have been twice before
the Superior Court of Pamlico, once
before the Superior Court of Car
teret and once before the Superior
Court of Wake, and the records will
bear ma out in the statement that in
neither instance has any charge Of
fraud or illegal fees been made in the
ans wers filed.
Would it not seem to be fair, if such
charges are believed, to make them
when the cases are being investigated,
in q that they may be met by the
proof9