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

| member of the court.
"That night about O'Clock Col Kenan
| telephoned me that there was no use to
| send the opinion around; that he would
| not issue the mandamus without a writ
| ten order from the court. / replied that
| this was an extremely important matter
and / preferred that he would send the
opinion around as / had requested. He
| said he would do so.'
SENSATION OF THE DAY.
Just at this point in Judge Clark's story
| the sensation of the day was sprung 1t
came as quietly and innocently as sum-
mer shower but like the aforesaid shower
it had in it-for the defense-the binding
surprise of a lightning's flash and the
growing terror of deep-toned thunder.
1.-THE next morning." said Judge Clark
continuing the story related above-"The
next morning when court met, / found
Gov. Jarvis reading in the Supreme Court
library. / called him into the consulta-
tion room and laid the whole matter be-
fore him-Shall 8 tell you what occurred
there?"
This last remark was addressed to Gov.
Jarvis who was now on his feet with
appraised hand, as if commanding silence.
Gov. Jarvis asked;
Judge, do you think you ought to tell
a private conversation"
Judge Clark bowling and smiling, re-
piled amiably:
"Of course, Governor, If you object
will not tell it."
Gov. Jarvis II don't object on my own
account. 1t is not competent in this case.
After the trial is over you may publish it
to the world if you like. ] have nothing
to hide 1t is not evidence, though"
Judge Clark: II will not tell it, Gov
ernoT, if you object"
Gov Jarvis: my objection is that you
ought not to repeat a private conversation
between gentlemen"
Judge Clark now resumed his story OF
the proceedings in court touching the is
suance of the mandamus.
ION the next afternoon (TueSdayl Col.
Kenan came in again for more explicit
instructions He had a written opinion
in his hand, and he polled the court
again. Judge Douglas said: Issue it.
Judge Montgomery said: Col sKenan, I'm
bound to tell you that you have no con-
stitutional power to issue that writ.
Judge Furches said: 1T is your duty Ito
,, issue it, The Chief Justice said Issue
it, l said: Col. Kenan, you know my
views. You have my protest and dis
sent
That was the last of it, ''srosssa.
do you recall asked Col. Davidson.
''any other expression of Judge Mont
gomery after the court was polled?"
Just, before Col Kenan came in on
Monday" replied the witness, Judge
Montgomery said Gentlemen, L am
10 toll hn
writ. You gentlemen have political
party back Of you; have not?'
The witness was then questioned con-
corning the erasures and alterations in
his copy of the protest and dissenting
opinion. He replied:
THE SUPPRESSED DISSENT.
There was some discussion in confer
encc about the mandamus. Judge Furches
said the copy of it furnished to Kenan was
prepared by him (Furches) and the Chief
Justice. Then some discussion was had
as to my dissent. / took up a pen and
started to strike out the Objectionable
parts Of it, But finding that that would
take too much time. / remarked that |
would carry the opinion home and make
the alterations. No one objected and / put
it in my pocket. Later ] brought the
to have it filed, saying i hope there is
now no objection to it. Judge Furches
said il was all Objectionable to him.
Judge Montgomery said he was tired of
political cases and dissenting opinions
and he hoped this was an end of them,
Judge Douglas said he was willing for it
to go into the obituary column. re-
piled: Yes, it may suit the obituary coll
F.,y,n al
(Laughter.)
What did you strike out of the opin-
ion ?"
MY opinion, as first sent out, held that
the court had no power to issue the writ
and Col Kenan had not been directed
TO issue it. This latter statement was
struck out because the court had ordered
the writ issued
"Did you ask your protest and dissent
back?"
4Yes, when the court refused to allow
them filed The Chief Justice and Judge
Douglas said they didn't have their CO.
pies Judge Montgomery handed his over,
and Judge Furches said that in view of
what had been said he believed he'd keep
his"
fIs 1t usual for judges to make correc-
tions in their opinions?
"It is very frequently done. In fact,
few opinions are filed that are not first
corrected or altered. These corrections
are always made in the copy of the judge
writing the opinion.
WAY OUT OF THE TROUBLE.
Ibid you suggest any other way, out
of the difficulty other than issuing a
peremptory mandamus?"
after Col. Kenan had gone out l said:
Gentlemen, l don't want you all to get
into trouble, and allow me to suggest
that you issue an alternative mandamus.
To this the Treasurer can reply that the
LEGISLATURE prohibited payment of the
claim. The matter can then come be-
fore that body for it's action, and we
will thereby beth maintain our dignity
and keep out of trouble. I"
What did they say to that
"They replied that the matter had been
auarreled over enough, and they thought
the man ought to have his money.
WAS this before the writ was issued.
"Yes, just as soon as Kenan went
out
"Will Won explain the difference be-
tween an alternative and peremptory
mandamus?''
To this question the defence objected