The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-02-09

| DeeH served lie ueIenddnL.S counSe
was present in court, but the court as
certaining that the motion was not baseC
upon affidavit. stated that il would no
pass upon the matter in that status. ant
defendants counsel withdrew without thu
| necessityAof being heard
Since then, Without further notice tc
the defendants. the clerk of this court
has drawn up peremptory mandamus
to the Auditor to allow this claim, and
to the Public Treasurer to pay the
same, and presenting the same to the
court, asked its instruction whether
to issue The same.
AS member of the court, ! then
asked the court to instruct the clerk not
70 issue the peremptory mandamus.
This was declined.
With all respect to my associates,
and solely in compliance with my oath
of office to support maintain and de-
/ fend" the constitution, | wish to put
on record my non concurrence in such
action, with my reasons therefor
| l. / think, as the court has already
! twice decided in this case, at this term.
the writ should not issue till after no.
tice of the motion served upon the de-
PENDANTS, and upon affidaVits filed as
a basis for such motion and opportun-
ity for defendants to be heard in reply.
The Judgment below, which was modi-
fed and affirmed. did not order Pc
remptory nandamus but simply man
danus which by the uniform course and
practice of the courts is an alternative
mandamus Cotton Y. Ellis. 50 N. c..
/ at y. $500, even When the mandamus is
against a county which is sueabe, and
against which judgment has been OBJ
tanned. Fry Y. Commissioners, 80 N. c.,
304: Hughes V. Commissioners, 107 n. c.,
COS. After such mandamus has been
served, if it is not obeyed, under the
settled procedure, a notice is served
upon defendants, upon affldavits Gas
the court has already held to show
, cause why peremptory mandamus
should not issue, and Ii it is then or
dered it is by the court, never by the
clerk In this cause the ordinary man
damus has not been yet issued or serv-
ed. L appears that the defendants
have had no precept issued to them
but merely a copy of the opinion of the
court.
A. The writ recites: at being further
declared by the court that the defend
ant Hal w. Aver, as State Auditor,
shall proceed to pass upon and audit
said claims, upon the same being prop
erly certified" etc, whereas, in fact,
no such language occurs in the opin-
ion of the court The court itself audit
ed the claim by deciding upon the
amount due plaintiff by the State, and
there is no language ordering that the
Auditor shall proceed to pass upon
and audit said claim While a peremp
tory mandamus is process in the ma
ture OF an execution" It is not such an
execution as issues of course, as upon
a Judgment of debt, but it only issues
upon an order of the court, and has
no validity except when thus ordered
to issue.
5. The peremptory mandamus recites
that the court has declared that the
defendant w II Worth, State Treas
urer, shall pay the amount stated in
the warrant drawn by the defendant
Hal w. Aver, as Auditor aforesaid
whereas, such language does not APP
pear in the opinion of the court. There
is a wide, distinction between an opin-
ion of the court that the state is justly
indebted to a plaintiff, and a peremp-
tory mandamus to an official charged
WITH the CUSTODY OI the puDlIC LdI4uo-
This distinction is clearly marked by
the Constitution Art. ", sec. 8, which
provides that this court has original
jurisdiction to hear claims against the
State. but it's decisions shall be merely
recommendatory no process in the'na-
ture of an execution shall issue there
on"
6. The peremptory mandamus directed
to the Auditor further recites: You
are hereby commanded absolutely and
peremptorily without delay to audit
said accounts upon their being present
ed to you. And that you at once, upon
auditing the same, issue warrants there
for upon the State Treasurer for such
amounts as may be found to be due
the plaintiffs thereon'-and the writ
directed to the State Treasurer, recites:
You ara commanded absolutely and
peremptorily to pay the warrants is
sued by the State Auditor on you as
State Treasurer in favor of the plain
tiffs." These peremptory writs are not
authorized by the following language
of the opinion: THE judgment of the
court below will be modified in confor-
nifty with this opinion and being SO
reformed, judgment will be entered in
this court" for the judgment below,
printed in 126 N. c., at p. 572, shows
that by it no absolute and peremptory
mandamus was ordered.
At last term l dissented, 126 N c.,
500, from the majority opinion affirm
ing the judgment below, which was
merely for mandamus, and ! shall
not repeat the reasons there given. But
here, that opinion not having been ac-
copied by the defendants, it is proposed
that a peremptory mandamus be issued
to the high State officials.
In view of the action of the General
Assembly by the resolution above re-
ferred to, passed since the opinion of
this court, there is a conflict of juris
diction between this and the legislative
department of the government. 1t will
be both courtesy and wisdom not to
make a further conflict inevitable by
permitting the clerk to issue a peremp
tory and absolute order to pay The
States money to the plaintiff. 1t would
be more seemly to give the new Legis-
! allure soon to assemble. an opportun-
| ity at least TO withdraw their inhibi
I ton upon the Treasurer and Auditor,
/ against paying plaintiff
! For the first time in the history OF