The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-03-22

that may last for life, how can some
grievances be redressed, and how can
the laws be amended and strengthened?
Were any of you here in 1895 or 1897
when men were clamoring to get in the
penitentiary, not to wear stripes, but to
| get plumber, some of whom were no
better than the men who wore stripes!
| In 1898 the people rose up in their NAL
esty-said this government was not
created to put men into Offices but for
| the good of the people and they came to
| Raleigh to execute th.e will of the peo-
| PIE. Were they permitted to do it?
Look at the office-h holding cases and see
| how their will was ti:warted.
The Republican pare.y in 1868 had pos
session of every department of State
| Government. If any Democrat was in
office anywhere. he escaped somehow
and was overlooked. In 1870 the Repub-
licans were overthrow. The Demo-
cratic Legislature undertook to put their
men in office. The question was then
can the Legislature or the Governor APP
! point? The court SAID the Governor
/ because in express terms the Constitu
ton of 1868 gave the Governor the right
] to appoint all officers and denied the
rights of the Legislature to appoint or
| elect any officers. Since then, in 1875,
! the Constitutional Convention changed
the Constitution by striking out all the
| provisions that forbade the Legislature
| to elect. Clark VS.. Stanly is no longer
law because the Constitutional Conven-
ton of 1876 changed the Constitution.
| In Nichols vs. McKee,, Clark VS.. Stanly
and like cases are based upon the old
| Constitution and you see no reference
| TO Hoke VS.. Henderson in them.
"A public officer is an agency of the
State" is the definition of an office ac-
cording to Chief Justice Pearson. He
| is an agent of the people, the people
| reserving the right to turn him out
whenever they say So. II
II the court had adhered to the Con-
stitution had taken notice of the
changes in the Constitution, there
would have been no trouble. We con-
tend that the Legislature that creates
an office can abolish it.
The question whether or not Whites
claim was a claim against the State is
not a matter open to argument. The
Constitution is so plain that any boy
twelve years old could see that the SUI
preme court could not order the. Treas
urer to pay out moneJ when it is ex-
pressly provided that it's decisions are
merely recommendation" 1t goes on to
say: mo process in the nature of an
execution shall issue thereon,y but
they shall be reported to the next SEES
sion of the General Assembly" That
is too plain to need argument. That
provision was a barbed wire fence put
up to keep everybody out of the State
Trn ~ GOV
ton does not mean what it says-an Of
fice-holders salary is not claim against
the State. You may tell that to ma
rines but old soldiers will not believe it.
They say that this vas put in to bar
old claims growing out of the war. The
Constitution wasn't made in day. In
1875 that clause (See 81 was not changed.
Why was ittput in? l. was a wise pro-
vision and now two Republican judges
are brought up for violating Republi-
can Constitutional provision which was
wisely kept in by the convention of
1875.
The Supreme court of the United
States, in a case about paying an of
fieers salary. U.fS. VS. Guthrie) said
that unless fenced II the Treasury
would be open to varying judgments of
except for purely ministerial functions
if the officer has any discretion, no
writ can issue. That is the law of
North Carolina. In Baner vs. Adams
(65th. N. CO. it was held that the Treas
urer and Auditor could not be- sued in
the same action or join them in writ
of mandamus. 1t was held that the
Auditor is not a mere ministerial of
ficer. He has many questions of dis
erection. He read extracts from the de-
cision and compared it with the White
case. In the White case the mandamus
was issued against the Treasurer be-
fore the Auditor had exercised his dis
erection, and the case as to the Treas
urer in Bcner VS.. Adams for that cause
was dismissed. Judge Reade said: IF
the claims were before us on ascertain
ed facts, we mighht rec, mmend it to the
legislature But the mandamus was
1efused!
My! My! Suppose they had thought
of the case of Hoke VS. Henderson.
Balm VS.. Jenkins Goth N. C) decided
when the Legislature had forbidden a
warrant to be paid, application must be
made to the Legislature, or a suit ORIG
MATING in the Supreme court. Other
like decisions were quet ted.
When Pearson was Chief Justice he
did not think the Supreme Court car
ried the keys TO the Treasury Depart
ment Clement, of Ohio, made con-
tract for North Carolina to furnish the
steel doors. When the Democrats got
in power they repealed the law. Glenn
ents brought suit. The State said the
Legislature had the power to repeal the
contract, but the court said the Legis-
lature in repeating violated contract.
In order to ascertain Clements dam
ages, the jury trial was held he got
| 100000 damages for breech of the con-
/ tract. Chief Justice Pearson said that
the State wed $40 COO Did he order
mandamus? No. A copy of the pro-
ceedings and judgment was sent to the
General Assembly. That's the way they
did when Pearson was or the benefit
They knew how much was due Glenn
ents, but did not think of going beyond
the recommendatory' method prescrib-
ed in the Constitution.
That was at a time when the court
would instruct it's clerk what to do;
when court would sake responsibility
when it should take responsibility.
Maj. Guthrie then Went at length into