The news & observer., 1901-03-07

said fourth article, these respondents say
that it is true that article ~. section ,.
OF the Constitution of North Carolina
does not center upon the Supreme court
Original jurisdiction to hear claims
against the State" but these respondents
deny that The said controversy of The
ophilus White VS.. Hal w. Aver, State
Auditor. and w. II. Worth, State Treas
urer referred to in said specification. in
yolved claim against the state Of North
Caroiina on the contrary they aver that
il was merely a money demand made by
the said Theophilus White, an officer Of
the State. upon the said Auditor and
Treasurer. for the salary due TO the said
Theophilus White. as such officer, and
for the payment of which a sum had been
appropriated by the General Assembly;
and that II was admitted in the said con
troversy tas set forth in answer to ar
ticle - that II had been collected and
was then in the hands Of the State Treas
urer for the purpose of paying the salary
due TO the officer under the law, as the
court should construe IT. that the said
controversy was submitted without action
upon an agreed state of facts Gas set
forth above) to a judge of the Superior
court Of Perquimans county for his deci
sion the parties thereto making no ques
tion as to the proper venue but seeking
only. for their guidance and instruction.
p decision of the Supreme court as to the
rights of the plaintiff and the duty Of the
defendants therein.
That specification 2 of said fourth ar
ticlc 8 denied.
n. .r uafH a r
ticle is denied.
That specification 4 of said fourth ar
ticle is denied.
For answer to specification . subjoined
ia said fourth article, these respondents
deny that one OF the Associate Justices
Of the Supreme court was prevented by
the majority of the said court, including
these respondents and the then Chief JUS
tice William T. Faircloth from
filing his dissenting opinion in the
taid controversy submitted WIN
out action. entitled Theophilus White
against Hal w. Aver State Auditor'
and w. H. Worth, State Treasurer ana
on the contrary these respondents aver
that an opinion was fled by each OF
the two members of the said court who
dissented from the Judgment in SAID
controversy, giving at length their rea-
sons for dissenting from the Judgment
Of the said court directing the aforesaid
mandamus writs 10 be issued; winch
dissenting opinions were published in
volume 126. of the Supreme Court Re
ports on pages 5S7 and $50.
That it is true that at the succeed
ing term Of the court, about five months
after the said controversy had been dis
posed or and the opinions and Judgment
therein filed. these respondents ana the
then Chief Justice William T. Fair
cloth, at the request of the clerk of the
said court, did give him their individual
opinion that it was his duty to issue
the said writs Of mandamus when de-
manded by the plaintiff, in accordance
with opinion and Judgment which had
been filed in said cause at the preceding
term of the said court directing them TO
be issued and that it is also true that
at the same time two OF the Associate
Justices of the said Supreme Court told
the said clerk that i'm their opinion he
ought not to issue the said Wrttsi and
Cne OF the Associate Justices. namely
Justice Clark-then asked to have
spread upon the minutes OF The court
an order from himself alone directing
and nstructing the clerk not to issue
the said writs; and also rendered what
he termed a dissenting opinion which
he had heretofore filed with the clerk
of said court and asked that il be print
ed as such in the colume containing the
opinions and dissenting opinions Of the
court at the September term 1900, Of
said court; which will be volume 127 Of
said Reports. And these respondents
l. ; 1, ~
the then Chief Justice William 7. Fair
cloth, and Associate Justice Montgom-
cry, did object to the said requests upon
the ground that the said appeal In the
Said controversy entitled as aforesaid
had been decided and disposed of at the
preceding term Of the said court and
that at said preceding term four opin-
ions had been filed and final Judgment
entered therein; and that the said JUS
tice Clark had at the SAID preceding
term of said court filed full and eX-
haustive opinion dissenting from the
opinion and judgment of the court on
the ground that the said Judgment or
dered and directed peremptory writs
of mandamus to issue; which said dis
senting opinion. together with the opin-
ion Of the court had already been pub
uSDeu III tue NOlulIe lGO OF INC oupfflue
Court Reports, containing the opinions
and dissenting opinions rendered at Tue
said February term 1900 Of said court
And these respondents. together with
the then Chief Justice William T.. Fair
cloth and Associate Justice Mcntgom-
cry further objected to the said re-
quests of Justice Clark upon the ground
that the said appeal in the said contro-
versy, entitled as aforesaid, having been
| decided and disposed OF at the said pre-
! ceding term of the said court, there was
therefore nothing before the court upon
which it could act as a court. And
urpn The said objections having been
made as Aforesaid by the justices afolc-
| said, Justice Clark withdrew the said
! dissenting opinion and asked that the
| copies thereof be returned to him.
! Further answering said fourth article
and the several specifications subjoined
these respondents declare that in their
conduct in reference t. the matters and
| things therein alleged they were gov
erned solely by an honest and conscient-
fous desire to perform their duty as jus
| tices Of the said court; that their course