The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-06-08
CONVENTIONS.
THE PUBLIC TREASURY OPENED
BY A CROW-BAR OF
THE COURT.


dissenting opinion of Judge Clark,
showing that the courts order to the
public Treasurer TO pay out money
after being forbidden by the Legisla-
decisions of the United States Su-
preme court.
As the matter is of great public i'm
portance we now give an extract from
Judge Clarke's opinion showing that
the assumption by the court of au-
thority over the State Treasury is
contrary to all of its own decisions,
which deny that the court possesses
such powers. Says the dissenting
opinion:
"The identical point has been eX-
pressly decided against the plaintiff
by this court in cases on 'all fOurs'
with the one before us. In BOner VS..
Adams, 65 y. c., $50, the court says
that mandamus can not be brought
against the Auditor and Treasurer at
the same time (as is here attempted)
because in no case could a mandamns
lie against the Treasurer until war
rant had been issued by the Auditor.
Reade j., then says as to the Auditor
that he is mot a mere ministerial OF
ficer," because he is to judge whether
there is sufficient provision of law
for its payment" He adds: THE
most this court could do would be to
order the Auditor to examine the
claim and to allow it, if he thought
it correct and in that event to issue
his warrant for it, if in his opinion
there is sufficient provision of law
for its payment The court then
says: Nor can we pass upon the
merits of the claim
'In Bayne VS.. Jenkins, 60 NC. $50
we have a duplicate of the present
case Gf an office is contract.) There
l.. p. Bayne & Co., had a contract
with the State and as in the present
case, the Legislature directed that no
payment should be made under it.
The court held that mandamus
could not issue for payment of plain
tiff and said: ''The Auditor in his war
rant upon the Treasurer, in any ease,
must recite the law under which it
was issued and as the Legislature has
expressly forbid warrant or the
payment of money in this case, the
Auditor could not issue a warrant.
'If the plaintiff have a claim as al
legged it seems that his remedy is an
application to the Legislature or a
suit originated in this court" (Which
couiti only recommend payment to the
Legislature Const. Art. ~. Sec. 81
If the plaintiffs claim that his office
is a contract be conceded. then these
eases are precisely alike, differing on
~ in the name of the plaintiff. 1T is
passing strange if the Constitution
permits any Superior court judge to
issue mandamus to the public Treas
nrer to pay claim against it when
it expressly forbids the Supreme
court in a case begun there. to do
more than recommend payment to the
Legislature. The original jur;sdic-
ton of claims against the State is
given by the Constitution to the Su-
preme court alone.
''As is well said in the brief of Mr..
X. p. Battle in the later case, IF each
Superior court in the State could or
der the Treasurer to pay out moneys
or command the Auditor to issue war
rants. the fiscal concerns of the State
could not be regulated or intelligent
" conducted. All claimants could in
effect sue a sovereign State by resort
ing to mandamus against the officers
in charge of her funds.
.'These cases have ever since been
held as authority and have never been
questioned in any way. In kOonce
VS.. Commissioners. 100 \. c. at page
200 the court quotes with approval
from Boner VS.. Adams. 1.-THE most
this court could do would be to or
der the Auditor to examine the claim
and report the fact, with his opinion,
to the General Assembly"
SIN Burton VS.. Furman, is n. c. at
page 100. the court again cites Boner
vs. Adams, saying: at was held that
mandamus would not lie against the
Treasurer. because no warrant had
been issued, and not against the Aud
than ministerial duty sought to
he required of him. The prin-
ciples governing the issue of mandam-
MS were the same then as now and the
decision is a controlling one in which
we fully concur This was in 1894.
Tn Gamer VS.. Worth. 1872 n. c. $50
lS9S) it was still the law, for the
same judges that are now on the
bench restate the same provision and
cite the above eases. In Chemical Co.
VS.. Board of Agriculture and the Pub
lie Treasurer III y. {. 1875 it was held