The news & observer., 1901-03-17
(Continued from Nin.,, para1


that it was simply question of whether
the mandamus was issued or not, that if
the judges were impeachable it must be
Tor issuing the mandamus.
Mr.. Watson said the papers showed that
the court was compelling the Auditor tn
perform an official discretionary act and
the court must be held responsible for it.
The court either knew the nature of
this claim or ought to have known it.
The judges knew or ought to have known
that this claim was not regularly made
out, was not properly countersigned and
should not have been paid
Judge Bynum argued that these papers
must first be connected with the defend
ants before they could be held compe-
tent. He contended that the judges could
Ia no view of the question be held respon-
stble for Irregularities in the claim. If
the claim was not proper then the Audi
ter and Treasurer must answer for it and
they alone.
Mr.. Busbee said no peremptory man
damus could issue for money demand
unless the amount was definite and fixed
by the judgment
Mr.. Watson: Another thing the court
below found sum due White only up to
November goth, 1899. The Supreme court.
however, went beyond that. 1t gave a
Judgment up to September. 1900. and in
structed the Auditor tc go and make a
settlement with White upon certain
basis. We say that If the court didn't
see that claim it ought to have seen
it,"
The President: 81 am of the opinion
that it is competent when you have laid
proper foundation
This foundation was laid by eliciting
from the witness the fact that he found
the papers among the official records of
the Auditors office. and the papers were
admitted in evidence.
APPEAL TO THE SENATE.
After their admission Messrs Osborne
and Busbee CT. H. protested at great
length, and asked vote of the Senate
on the question.
Touching the question of connecting the
defendants with these papers, Mr.. Watson
said
They are already connected with them.
They could not render the opinion they
did and comply with the statute. They
simply had to tell the Auditor to do the
best he could. Then they are Just
as much responsible for what occurred in
the Auditors office as the Southern Rail-
way would be if it turned loose a wild
engine here and it should cause a wreck
and loss of life at Cary. These judges put
the machinery in motion, they are re-
sponsible for the consequence
The President again stated that he had
ruled the evidence in.
Mr.. Osborne still protested and Cap
tain Cook asked time for counsel to CO.,:
fer. After this conference, Mr.. Osborne
said he wished to appeal from the decision
of the chair Thereupon Senator Ward
said:
Without indicating an opinion until
we come to q vote, but to accommodate
| counsel, / call for division.
Before the question was put Mr.. Os-
| borne said he desired to state his posi-
| ticn. This was a repetition of what he
| had already sale: That the judges were
either guilty or not guilty when they
issued the mandamus; that they were not
responsible for what the Auditor did"
Mr.. Busbee and Mr.. Watson, for the
| prosecution, replied briefly both contend
| ing that the judges were not sonly respon-
| sible for the act of issuing the mandamus
| but for it's immediate result Mr.. Watson
| said:
"The court knew that it's order had
! to be complied with. 1t knew these ac-
| counts had to be aIdited to keep the
treasury from being robbed. They can't
be heard to come here now and say they
are not responsible. They've got to fol-
| low it down to the last payment by the
Trea asurer."
Judge Bynum spoke for quarter of an
hour, reiterating their contention that
| the judges ought not to be held response
BILE for things they did not themselves
do. He read the judgment of the court
in the White case and the mandamus is
sued thereon, cnntending that the Audi
tor alone should be held responsible for
the regularity or irregularity of White S
accounts.
He was followed by Mr.. Osborne, who
contended that the judges ought not to
be tried for thing not charged in the
bill of indictment.
PAY OR GO TO JAIL"
Mr. Pou, for the defense, said; I'VE
would not ask you to hold these judges
responsible for any act of another per-
son had thev not compelled that person
to perform it. They took away from the
Auditor all discretion, except to calculate
the number Of miles White had travelled.
Are they not responsible? Did they stop
there? They sent over to the Treasurer,
even before the warrant was issued, and
said, Pay that money or go to Jail Yes
terday it looked like Colonel Kenan was
to be made the scape goat for the sins
of these judges Now they are trying to
put them on the Treasurer and the Audi
tor. 1t makes little difference how you
draw the warrant is what the decision
says in effect but patch it up somehow
so that White can get the money Do
| you say they are not responsibe?"
Mr.. POu concluded with a discussion
| Of the decision and Whites acts under
| it.
The question was about to be put when
Senator Justice requested that some
| further questions be asked the witness in
regard to where he found the papers Of
fered in evidence
On questions from Major Guthrie the
witness said he found them in the iron
| safe among other valuable papers.
Senator Henderson said unless there
was some further explanation he would
have to vote to sustain the chair There