The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-02-06

same Manner
That no affidavits We're ever filed as
basis for applying for the mandamus.
That no certificate Of the Board of
| She'll Fish Commissioners, countersign-
I'd by the chairman of the Board of
Shell Fish Commissioners, was ever is
'ued in favor of the said TheophiluS
White. Before the Court finally direct
ID mandamus, it had information from
he State Treasurer that he would pay
he warrant if the mandamus was is
sued.
Article 4, Section of the Consti-
tuition, provides: THE Supreme Court
shall have original jurisdiction to hear
claims against the State, but it's deci-
sion shall be merely recommendations.
No process i'm the nature of an execu-
ion shall issue thereon. They shall be
exported at the next session of the Gen
eral Assembly for its action
Your committee thinks that under
our form al government it is intended
that the different departments OF gov
arnment, the legislative, judicial and
executive, shall be separate and indie
pendent, and that the duty of raising
revenues and determining how it shall
legislative department of the govern
ment
Your committee things further, that
is not only within the exclusive prov
nee of the legislative department to
say to what purposes money shall be
applied but also to prescribe the form
or withdrawing any moneys from the
Treasury as necessary safeguard.
80 f1Irtth nrs of "a
opinion that the court had no power to
dispense with the provisions in section
g. chapter 10, of the laws of 1899, pro-
viding, substantially. that the Auditor
shall not issue his warrant except up
on the certificate of the Secretary of
the Shell Fish Board countersigned by
the chairman of said board.
Your committee is further of the
opinion that the process issued against
the State Treasurer compelling him TO
pay money out of the Treasury, is
process against the State, and that the
order directing such process to issue,
made in the case of Theophilus White
against the Auditor. is in violation of
section 8, article 4, OF the Constitution.
Your committee is further of the
opinion that the Legislature had the
power to forbid payment of the claim
in favor of Theophilus White and
that it did so in express terms by chap
ter q of the laws of 1899, and that the
order of the court was in direct viola
lion and in utter disregard of this act.
1t is true the court argues that the
Legislature did not intend to forbid
payment to White but the intention is
clear upon the face Of the act and leaves
no room for construction. The same
court, in Garner VS.. Worth, 122 n. c.,
refused to issue a mandamus against
the Treasurer to compel payment of
Judgment rendered against the State
for a specific amount ascertained by
the judgment when the statute under
which the judgment was rendered said
"the State shall pay upon the ground
that the Legislature had made no APP
preparation for the payment, and that
process could not issue against the
State.
The manner in which this order was
issued indicate to our minds that the
judges who directed it to issue did not
think that they had the power to issue
the same, and that they We're under
taking to shift the responsibility from
themselves to the clerk of the Supreme
Court. At the time the direction to is
sue the mandamus was given David M.
Furches was an Associate Justice of
the Supreme Court. That since that
time he has been appointed
Chief Justice of the Supreme
Court, and is now holding the
office of Chief Justice.
review of the opinions from the pres
ent Supreme Court in the cases known as
the office holding cases, rendered since
the adjournment of the Legislature of
1899. leads to the conviction that ma
jority of the present court has used every
effort to thwart the will of the people
s expressed by their representatives in
the Legislature of 1899 and to weaken and
into disrepute the authority of the
Legislature. To do this they have great
ly extended doctrines which have only
been recognized at all, because they emf
mated from a court of high distinction.
They have, by applying the doctrine of in
pari materia, said that a statute which
repealed another statute must be con-
strued with Prior and subsequent
statute in order to ascertain the will
of the Legislature, and upon this con-
struction, had determined that the Leg
islature did not intend to abolish the Of
pressly said that the office was abolished.
They have said that IN office exists as
long as any of the duties are to be per-
formed, thereby practically holding that
an office is indestructibe, as it will be
rare indeed that the duties of an office
will not survive.
They have held that the office of Rail-
road Commissioner is not abolished, al
though there was an act repeating the
act creating the Railroad Commission
and another act which conferred upon the
Corporal ton Commission, in addition to
the powers of the Railroad Commission,
the jurisdiction and control of banks and
Building and Loan Associations in the
State. This was done in the face of the
decision of the same court, in Ward VS..
Elizabeth City. in which it was decided
hat an Act of the Legislature which re-
pealed the charter of Elizabeth City, and