The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-12-18
SUPREME COURT CAUCUS.

Legislative OOn111lltee IN investigating
the issuance of the mandamus to the
State Treasurer found>on Clerk Ken
ans books the entry which showed
that the mandamus was ordered by
three members of the court individ
ually' and not by the court as body.
This was as Illegal as the issuance of
the mandamus against the State. AS
individuals, the judges have no author
ity. 1t is only as a court they can
act. But the three individual Repub-
lican judges got together, and 'out of
court as the record shows,-issued
the Illegal warrant to take the peo-
pies money out of the State Treasury
contrary TO an express statute passed
by the representatives of the people.
The language of the constitution
prohibiting the court from exercising
any control over the Public Treasury
is too plain for any to miscomprehend.
The majority of the court knew bet
ter They simply despised the Leg
islature and sought to override it and
hold it up to contempt as they have
Systematically attempted to do for
nearly two years in every case that
has been before them. In no less than
half a dozen cases the court has since
1868 held that the constitution prohib-
tied it to issue a mandamus against
the State Treasurer. In the case of
A. w. Shaffer VS.. Jenkins, Public
Treasurer, ~ n. c. Reports, Page 275,
the court said:
THE MONEY IN THE PUBLIC
TREASURY IS IN THE EXCLUSIVE
CONTROL OF THE GENERAL AS
SEMBLY AND NO COURT OF THIS
STATE HAS AUTHORITY TO COM
PEI THE PUBLIC TREASURER TO
PAY AN ADMITTED DEBT OF THE
STATE AGAINST AN EXPRESS AND
POSITIVE PROHIBITION OF THE
GENERAL ASSEMBLY ON THE
TREASURER TO PAY SUCH DEBT"
This opinion was rendered by JUS
tice Rodman in January 1875. At the
same term in Wilson VS.. Treasurer
Jenkins, ~ n. G. Reports, page 5, an
opinion to the same puTport is filed by
Adams, in 65 n c. Reports, page $50
June 1879 Judge Reade in an opin-
ion held the same view and i'll his
opinion in the case of Bayne VS.. Jen-
kins, &C n. c. Reports, page $50. rem
dered in January 1872 repeated it.
Thus we see that their Republican
edecessors-Pearson, Reade and Rod
man--had explicitly notified the pres
ent Republican Truimvirate on the
bench that it was beyond their power
to order money paid by the State
Treasury-that it was a power exclus-
lively reserved for the General Assem-
bly,. And this very court itself, the
same five judges on the bench as now,
so held at the February term 1898, in
Garner VS. Worth, 122 n. c. Reports,
page $50.
There is no excuse for the State
Treasurer. He had made the same
point that the court had no power
to order him to pay out money in
Gamers case and the court had held
with him. He knew-or ought to have
known-that the order of the court in
a matter beyond its jurisdiction and
forbidden by the constitution was
void, and of no more authority than a
magistrates Judgment to put man in
the penitentiary or to hang him. He
well knew the difference between
Judgment merely erroneous and a void
Judgment, but by underground COM
munication he let the Republican
judges know he would obey the writ
and then-and not until then-it was
issued.
When the court delivered its opin-
ion in May in the White case, the Leg
islature was to meet in special SEES
sion in June, and hence no writ issued.
Legislators who called on Treasurer
Worth in July and found he had not
paid the illegal claim. Not then! When
the court met in September, two in
effectual motions by Mr.. Harris, attor-
ney for White, to have the writs issued
were made. The writ did not go until
the court knew privately that the
Treasurer would pay. And then by in
dividual action of the three Republi-
can judges, and ont of court (as Col.
Kenan's records show the mandamus,
forbidden by the State constitution,
was ordered to issue to take money
out of the Treasury to pay a Fusion
usurping an office holder a sum the
Legislature said should not be paid.
The judiciary is not exhausted" but
the patience of the tax payers is.
The Asheville Citizen learns that
Secretary Wilson fayors an apprODria-