The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-03-19

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Court bench and all except two have de-
clared acts of the Legislature unconstitu-
tional.
POLITICAL CHANGES.
In 1S71-72, the legislative and execu-
| tive power of the State was in the hands
OF different political parties. The Legis-
| lature undertook to secure control of the
| charitable and penal institutions of the
| State before the terms of office of those
in charge had expired; but the effort
| failed. Battle VS.. McIver, 6S NJ c. 167
Badger VS.. Johnson, 6S-471. Nichols VS..
| Mckee 68-429; Walker VS.. Bledsoe, 6S-
Asst.
| Again, in 1895, the legislative power
was in possession of one political party
and the executive in another The same
| effort was renewed and again bafhed by
| the unanimous decision of the court in
| Wood VS.. Bellamy and similar cases 100
| N. c., 212.
'In 1899 came another political change
and the same attempt again was made and
| again proved unsuccessful No impeacn-
ment of the court was thought of In 1872
none in 1895 or 1896, and what greater
| reason can be said to exist for it now:
I'm every one Of these office holding
! cases the opinion of the court was con-
! CURED in by four justices and one is as
much responsible for the decisions as The
| others. One of them, the venerable Chief
| Justice, suddenly stricken by the hand
Of death, has gone to higher court, be-
fore Greater Judge. Two of the others
| are here, passing without complaint
| through this the greatest ordeal of their
| lives The fourth sits upon yonder bench
urscathed and uncriticiscd in the faithful
| and uninterrupted performance of his Of
! fetal duties. Are we not forced to the
! conclusion from this, that the members
of the House of Representatives, in ex-
| hibiting through their managers, the I'M
| parchment against these respondents,
| alone, were satisfied that in those decf-
| sions there was committed no wrong or,
| if any, at most but an error of judg
ment?'
The articles of the Constitution alleged
to have been violated by the judges were
read and commented on at some length,
and Judge Bynum said that before the
court can find the respondents guilty even
of technical violation of the Consttu
ton, it must be established beyond ques-
ton that the salary due from the Treas
urer to White for services and expenses,
was "a claim against the State" within
the meaning of section w, Article 8 of
the Constitution. For If it was not a
claim of such a character and the case
was one in which the writs were the prop
er remedy, the court had the right to
cause them to be issued and no provision
of the Constitution was violated by their
action.
WHITE AND HIS CLAIM
amined and the history of his case was
reviewed at length, and the reasons that
influenced the court to decide in his
favor were set forth.
Touching the issuance Of the mandamus
he said:
The facts constituting the case were
agreed upon and by consent of the parties
submitted in controversy without ac-
tion under the Code, to Judge Starbuck,
then holding the court of the First Judi
cial district. In the case submitted, it was
expressly agreed as fact that no part
of the compensation provided in chapter
10 Of the laws of 1899. had been paid TO
the persons therein named, as Shell Fish
Commissioners and that the State Treas
urer then had on hand of the oyster fund
collected under chapters 10 Of the laws
of 1897 and 19 of the laws of 1899, an
amount sufficient and avilable to pay the
salary and expenses claimed by White.
Unon these facts, White contended that
he was entitled to a peremptory writ of
mandamus commanding the Auditor to is
sue his warrant for the amount due him,
and similar writ directing the Treas
urer to pay it. Judge Starbuck granted
the wrfts and on appeal to the Supreme
court, his judgment was affirmed and on
May %, 1900, judgment was entered in
the Supreme court in accordance with it's
opinion filed in the case
Here then is a salary due to an Of
ficer of the State, the amount of which
is ascertained, admitted and fixed by
statute and specific appropriation made
by the Legislature for it's payment. Was
White then entitled to the remedy for
which he applied? AS said by Chief Jus
tice Marshall in Marbury VS.. Madison,
that depends first on the nature of the
writ applied for, and second, the power
of the court to which the application was
made.
THE purpose of the writ of mandamus
is to require an inferior court or an Of
ficer, corporation or person. to do some
particular thing specified therein, which
appertains to their office or duty. and it
will be issued when the act required to
be done is merely ministerial and the per-
son seeking it has a clear right and is
without any other adequate legal remedy.
Burton VS.. Furman, 116, N. c., 16S-169
Marbury VS. Madison, ! Cranch, 1853.
Nor is it disputed that the State Treas
erer and Auditor are officers to whom on
legal principles such writs may in proper
cases be issued. Had White then any
other complete legal remedy?
HOW TO COLLECT MONEY.
There are only three ways of collect
ing money from the State Treasury
q. BY an application to the Auditor
to examine and liquidate claims as pro-
vided by section 1850, subsection Z, of The
Code.
go BY an action begun in the Supreme
court under article ", section 8, Of the
Constitution, and section 948 of The Code.
80 BY an action instituted in the SUI
perior court as was done in White against
Auditor.