The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-02-09
EVIDENCE IN
IMPEACHMENT
OF JUSTICES
Continued from 1st page)


----------------
finally he polled the court again. Judge
Douglas told him it was his duty to issue
il. Judge Montgomery said. II am bound
10 tell you, Colonel you have no consti-
tutfonal power TO issue it, Justice
Punches said, 4 have already told you it
was your duty to issue it, l said, You
have in writing my opinion that you have
no power TO issue it, Judge Faircloth
said. 1T is your duty to issue it, The
court was then IN session in confer
ence in the same manner in which all
orders, judgments and opinions are rem
dered, except the very rare cases in
which a motion is refused or granted
without consultation As soon as he left,
rendered my dissenting opinion.
They objected, upon. the ground that /
had recited that Colonel Kenan was not
ordered to issue the writ. l said that
was true up to this time. and / will
strike out all that part of the opinion,
and did So They then objected to filing
il. upon the ground that it was about
executing the judgment of May %, and
that l had already filed dissenting opin-
ion upon that matter. | again rendered
the opinion and the other four judges
refused to allow it TO be filed
(Opinon as amended here offered in
evidence).
then asked the judges to whom the
copies had been sent, to hand me back
the unccrrected copies which they had.
One or two of them did so. Judge Fair
cloth said he did not have his copy, and
Judge Furches said. there has been so
much fuss about this matter / will keep
my copy.
In a day or two, the public press an
nounced that the mandamus had issued.
The matter was mentioned in conference,
but the writ was not recalled, and the
next day, | think, the money was paid.
Q. Were any affidavits ever filed?
A. No affidavits were ever filed, and
no motion was made before US after the
two motions that were denied in open
court.
O. Have you any reason to believe that
The court had information that the money
would be paid in obedience to the writ
A. On one occasion, do not remember
The precise day, in discussing the matter
with the court, l suggested, as | after
wards suggested in the dissenting opinion
which was not filed, that the proper way
10 prevent a clash between the two de-
artments CT the government was to is
Treasurer to show cause why the writ
should not issue; that while should dis
sent from their doing that, should file
no opinion; that the Treasurer would
Of course, answer to the February term,
1901, that he was forbidden by the Act
&C the Legislatures: that then, if the
Legislature was of the mind Judge
Punches expressed in his opinion, they
would give way and order the payment
and there would be no conflict If. on
the contrary, the Legislature did not give
way, MIR. Lacy. the new Treasurer,
NCuld be 'sure not to pay, and the court
retire with dignity and in that connec-
zion | said, Suppose you issue this writ
and the Treasurer does not obey it, what
ace you going to do with him? Put him in
jail?' And Judge Montgomery said
Treasurer Worth has told me that you
advised him not to obey the order Of
the court, but that he intended to obey
il If issued. In the dissenting opinion.
/ had criticised some recital in the man
danlus, and had said it was Incorrect and
Judge Furches said it was drawn by him
and Judge Faircloth. ! asked Colonel
keenan, about ii, and he said he went down
10 the Marlborough the Saturday night af-
ter he received my dissenting opinion and
protest, and said, on Monday, as l I'M
derstood him. the mandamus was sent
him in Judge Furches handwriting, and
endorsed on the back, Drawn as re-
qucsted by you" He said the only re-
quest he had made was for the order
10 issue it, and it was typewriter copy
of that manuscript mandamus that he
brought into the court room the second
time when he asked for the orders of
each Judge, and l have my copy here
with me. copy of my protest was
also sent around to all the judges, and
they declined to permit the protest to be
fled or recorded. The last words of the
protest are these: You will please re-
cord these on your minutes as a part of
the proceedings in this case.
@. Judge Clark, / wish you would tell
Us if you had any conversation with
Treasurer Worth in regard to this mat
ter, and if so, what it was?
A. | was passing through the capitol
shortly after the resolution was passed
by the June Legislature, and met DR..
Worth, and he asked me in his office, and
ne mentioned this matter, and asked me
what he should do. / told him he had
read my dissenting opinion and knew what
! thought about it; that | thought he had
no more authority to obey it than
sheriff would have to hang man if
justice of the peace told him to do it.
He said that was criminal case.
said, Suppose jutsice of the peace is
sues a writ of ejectment, do you think
the sheriff would be safe in obeying
that?" He said, But if / don't obey it
The court will put me in jail" / said,
They would not dare do it, He said,
But suppose they do?" l said, If they
do there will be Hhree vacant chairs over
there as soon as the Legislature meets"
left him with the distinct impression
on my mind that he would not obey the
writ if issued. The next l heard of it
was what Judge Montgomery told the
court.
WHITE VS. AUDITOR AND PUBLIC
TREASURER.
Clark, j., dissenting. In this cause at
last term an opinion in favor of the
plaintiff was filed by majority of the
court reciting that the defendants
wanted the opinion OF the court as to
what their duty was as public officers,
and concluding: The Judgment of the
court below will be modified in conform