The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-11-11

chapter 10. Acts of 1899, created an
| entirely new system, by which shell
| fish commission was created with a
| board of seven commissioners named
| in the act, with wider. and different
| jurisdiction from The old act OF 1897,
and with no such office as chief in
| spector.
| White brought suit in the Superior
J Court against Hill and the other six
commissioners named in the Act of
| 1899. before Judge Bowman (Rep.)
| The case came To- the Supreme Court
which affirmed the action of Bowman
in restoring White 10 an office which
had been abolished and putting him
| in the place of Hill and others, COM
| missioners elected by the Legislature.
Judge Clark alone dissented, pointing
out in his opinion that the court was
doing vain thing in putting White
back in, since the Legislature had, by
chapter u, Acts of 1890, expressly
| forbidden the Treasurer to pay any
officer claiming authority under the
abolished Act Of 1897 (l25 \. g.,
page 1881
Under the courts decision, White
applied to the Auditor and Treasurer
to pay him his salary. In view of
the prohibition OF the Legislature
above cited, these officers refused.
Thereupon. Notwithstanding the
above provisions Of the Constitution re-
stricting the jurisdiction of claims
against the State to the Supreme
Court, White sued the State Auditor
and Public Treasurer in the Superior
Court and obtained from Judge Star
buck II mandamus against them TO
pay him out Of funds in the public
treasury.
The case came TO the Supreme
Court and was affirmed G26 \. g.,
page 570), Judge Montgomery concur
ring in the dissent OF Judge Clark
upon the ground that the Constitution
| forbade the court to issue any writ
against the State Treasurer.
| That decision was filed May 22nd,
| 1900, but as Il special session OF the
| Legislature was to meet few days
| thereafter. the maiority of the court
were careful TO issue no mandamus.
When the Legislature met it passed
% resolution tActs of special session,
1900, page S2) appointing committee
to wait upon the Treasurer to ascer-
tain ii he had paid any money TO
White. To that question the Treas
urer promptly replied that he had not.
When the court met again ut the
fall term. MIR. j. c. l.. Harris, attor-
ney for Theophius White. moved the
court for pereEaptory hsanausAAA ipon
the Treasurer and Auditor 10 pay
Whites claim for salary. The court
eyaded it by saying that ten days no
tice had not been served on the other
side. On October 9th Harris again
appeared in court stating that he had
served the notice and that MIR. Chas.
A. Cook, counsel for the defence, was
then in court Again the court evad-
ed responsibility by observing that the
motion was not baseu on affidavit.
Harris furnished the required affl-
davits and the court, unwilling 10
| back down from the indefensible de-
cision it. had made. and to escape
| writing another opinion justifylng the
granting of the motion, privately IN
structed it's clerk To issue the peremp-
| tory mandamnus asked for by Harris.
| Before doing this, however, the Re-
publican members of the court secret
| ly ascertained from the Treasurer
| that he would obey the mandate of
| the court; then in private conclave
| the court took the extraordinary and
| unprecedented action of directing a
mandamus to issue TO the Auditor and
| Treasurer of the State Of North Car
olina in the words aboge recited, to
absolutely and peremptorily, without
delay, audit and pay" Theophilus
White his claim against the Stale for
salary.
What took place in this private con
clave is not known TO the public, but
as heretofore published in these col
umns, Judge Clark filed a written
| notice with the clerk contending that
the act of the court was contrary to
the Constitution, and therefore nu'l
and void Also il has been said that
Chief Justice Failcloth and Judge
Furches were the ones who drew the
mandamus.