The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-10-03
VARIETY OF CONVENTIONS
HOW THE SOLICITOR OF BUN
COMBE GOT A CROSS-FIRE.
DECLARED HIS OWN OFFICE ILLEGAL
A Case in Which the Court can Give Any One
Of Four Decisions. An Able Array Of
Counsel Present Mr.. Lusk
ON St. Peter.

One of the most mixed cases before
the Supreme court in a good many days
was that of the Western criminal circuit
yesterday morning, in which there was
one plaintiff and nine defendants stand
ing in differnet relations and claiming
by different titles.
The Western criminal circuit as first
established consisted of four counties
viz: Haywood, Henderson, Buncombe
and Madison. OF this district r. s.
Mccall was, in 1896, made solicitor In
1899 the district was abolished and a
new district comprising the above coun-
ties. together with Yancey, Mcdowell,
Burke, Caldwell and Forsyth was es-
tablished and the appointment Of solici-
tor for each of the nine counties in
the new district was provided for and
the appointments were subsequently
made by the Judge presiding in the dis
trict. Mr. Mccall set up the claim that
he had been deprived Of his office con-
trary to the constitution in the four
counates of the original district and
took the rather novel position that he
was also solicitor of the five new coun-
ties that had been Incorporated with
the four old ones in the making of the
new district. He was represented be-
fore the court yesterday by Messrs.
Carter and V. S. Lusk, Of Asheville.
The solicitors of the five new coun-
ties made the contention that even if
Mccall was entitled to act in the capac-
ity of solicitor in the four old coun-
ties he had no claim to act in the five
counties that We're never in his district.
These defendants We're represented be-
fore the court by Messrs. r. B. Glenn,
of Winston, and James III. Pou, OF
Raleigh. These defendants are Solici-
tors Gardner, of Yancey; Eaves. of Nc
Dowell: Avery. of Burke; Jones, of
Caldwell, and Griffith. of Forsyth.
The solicitors of the four counties of
the old district were not at one in their
contention before the court w. w.
Zachary, Of Madison. who was repre-
scented by Judge Shuford. set up the
claim that the office of Mccall had been
entirely abolished and destroyed by the
act creating the new district and had not
been re-created in a new form.
G.. A. Webb, holding in Buncombe by
the same title as Zachary in Madison,
took away the breath of court and liti-
giants by coming into court with the
admission that he was not entitled to
the office to which he was appointed,
that the act establishing the court in
the first instance, as well as the act
of $780, was unconstitutional and that
therefore neither he nor Mccall had
any right to the office which each had
held in turn and the emolnments of
which each had enjoyed. This made
Mr.. Webb an Ishmael in the case, and
standing opposed to the claims of all
other parties. he enjoyed the fire of
all for his pains He was represented
by Mes,srs. Cobb, Sonly and Judge
Charles A. Moore.
POSSIBLE DECISIONS.
render any one of four decisions in
the case. 1t can hold:
1. That Mccall is not solicitor, his
office having been utterly abolished.
2. That he is solicitor for all the nine
counties of the new district.
3. That he is solicitor for the four
counties originally in his district.
A. That the act establishing the Grim
inal court and all subsequent acts are
unconstitutional and that nobody is soli-
citOr.
If the court should hold the latter it
would be the first case of the kind in
the history of the State, according to
the attorneys, and would be fraught
with disastrous and far-reaching conse-
unences as all decisions and sentences of
the court since it was established would
thereby be rendered void.
THE ARGUMENT
Mr.. James III. Pou spoke first, for the
solicitors of the five new counties, say
ing in part:
1.-The following principles of law are
so we'll established by the uniform de-
cisions of our courts, that | suppose
they will not be controyerted.
Il. That the criminal court, by what
ever reason called, and embracing what
ever territory, was, and rs, creature OF
the Legislature.
80. That as such it is subject to
such changes in scope and form as the
Legislature thinks proper.
%. That the officers Of that court
accept office with the full knowledge of
the power of the Legislature TO change,
or abolish their offices.
II. That it is competent for the Leg
islature, during the term of any such
officer to add to his duties, without in
creasing his pay, to increase his pay
without adding TO his duties, or to cur
tail his duties and to reduce his com
pensation, and it is not competent for
the courts to inquire into the motives
of the Legislature in doing these acts.
-. That while the office of the clerk
of the Superior court and of solicitor OF
the several judicial districts, are offices
provided for in the constitution, it is
still competent for the Legislature to
transfer TO other courts a part, if not
!, all. of their criminal jurisdiction.
"6. That the Legislature having this
power to diminish the compensation o;
these officers of the Superior court,
must have at least as great power over
criminal courts which are of Its own
creation.
~. That it has been expressly held
that the criminal business might be