The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-02-06
A RESOLUTION
OF CENSURE
Continued from 1st page. ]

NNOhthuCu lIOlu ISls pdRe.l
laws OF 1899. expressly forbade the nav.
ment 10 the said White.
That the Supreme Court rendered ar
opinion holding that the plaintiff, White
was entitled to enforce payment of hi!
claim for compensation. This opinion wa.
filed ON the 22nd of May, 1900 That the
court did not then issue mandamus tt
compel payment. That the Legislature d
1899 met in adjourned session at Raleigh
on the 18th dag of June. 1900. That al
said session q committee was appointed
by the House of REPRESENTATIVES to waii
upon the Treasurer of the State and t
inquire of him il the claim of Theophilus
White had been paid, and this committee
reported back TO the House letter from
the tSate Treasurer stating that it hat
not been paid.
Ihat soon after the Supreme Court met
in September, 1900 application was made
in open court for a mandamus against the
State Auditor and State Treasurer tc
compel the Auditor to issue the warrant
in favor Of said White to compel the
Treasurer to pay the same.
That the court inquired of the attorney
making the application if he had given
any notice to the opposite side, and upon
his statement that he had not done so
declined to entertain the motion. Shortly
thereafter, application was again made
10y the attorney of said white for man
damus against the said Auditor and tho
said Treasurer. and upon the hearing OF
this motion. Chas. A. Cook appeared
representing the Auditor and the Treas
urer. and stated that he waived the
notice.
That the court then inquired if any af-
iidayits had been filed, and upon the state
ment that none he'd been filed. declined
the motion.
That shortly thereafter, there appeared
in one of the papers of Raleigh what pur-
ported to be an interview with the at
torney Of the said White, stating sub
stantially that the court was lodging, and
he would make them come to time
That after this, majority of the court,
to-wit: Judges Faircloth, Furches and
Douglas told the clerk of the Supreme
Court several times that it was his duty
to issue the mandamus Judges Clark and
Montgomery told him that it was his duty
not to issue. That the said clerk came to
the judges while they were in conference,
and asked for directions as to his duty.
That there was at first hesitation upon
the part CT the judges to express an
opinion, but finally, upon inquiry being
made Of each of the said judges, Judge
Douglas was non commttal, Judge Fur
ches told him that it was his duty to
issue the writ. Judges Clark and Mont
gomery told him It was his duty not to
issue the writ. and Judge Faircloth said,
speaking as an Individual, | think you
ought TO issue e"
That the clerk thereupon stated that he
understood them to direct the writ to is
sue, and no reply was made to this re-
mark on the part of the judges. That
the said clerk thereupon retired from the
room in which the judges were sitting,
and soon thereafter one of the judges,
to-wit: Judge Clark, inquired of
him e he intended to issue
said writ ard told Jim that ne
thought the Court had not explicitly
directed him to do so. That thereupon
Judge Clark filed an opinion in writing,
a copy of which is submitted with this
report, urging that the Court had no
power to issue the mandamus, and also
filed a protest against the issuing of
the same, a copy of which opinion and
the judges of the Supreme Court. That
this opinion and protest were delivered
to said judges about the 18th of Octo-
Der, 1900, on Friday or Saturday, and
on Saturday night of October 10. the
said clerk called at the Marlborough
House, where Judges FaircIoth. Fur
ches and Douglas We're boarding, and
the said judges told him that it was his
L. "A
That on Monday following, a copy of
a writ was handed to said clerk, which
copy was in the handwriting of Judge
Furches. That on the back of said
paper there was endorsed in the hand
writing of Judge Furches the following:
Dear Col. Kenan: At your request we
have written the within and suggest it
as a substitute for the one you have
prepared. You need not use the ex-
act language if you can better it, and
you will be able to draw one against the
Treasurer, making the necessary
changes therein"
That said writ was prepared and is
sued in accordance with the copy so
furnished by Judge Furches. That Col.
Kenan did not request either of the
Judges to prepare mandamus nor had
he himself before that prepared one,
although he did have in his possession
a copy of a writ prepared by the attor-
ney of Theophilus White.
That on the following Tuesday, the
said clerk came into the Supreme court
room while the judges of the Supreme
Cuort were in conference, and again re-
auested explicit directions as to his
duty in issuing the writ That at that
time Judges Douglas, Faircloth and
Furches told him it was his duty to is
sue the writ and Judges Clark and
montgomery told him it was not his
duty to issue the writ.
That this direction from the clerk