The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-02-16

| decisions as much as they pleased, put
| when they put their unhallowed hands into
| the treasury they did so in bold violation
| OF the constitution. The question OF Who
was entitled to the office was one Of
opinion on the law, but how to get the sal
ary-that was the crucial question, and
on it the present Supreme Court has gone
| to wreck.
Let me say also in passing that in
these decisions complained of. the Legis-
lature was most tippantlv referred to- its,
| motives questioned, the number of law
yers counted and much other to the same
effect. But We could have stood that, had
the Constitution not been violated.
The courts cannot direct the State
| Treasurer to pay claim against the
State, however just and unqueStioned
when there is no legislative appropria-
tion to pay the same: and when there
is an appropriation the coerciVe power
is applied NOT TO COMPEL THE
PAYMENT OF THE STATE LIABIL-
ITY BUT TO COMPEL A PUBLIC
SERVANT TO DISCHARGE HIS
DUTY BY OBEDIENCE TO A LEGIS-
LATIVE ENACTMENT
"But it is said that the great Chief
Justice Marshall once issued a writ
Let's see. President Adams appointed
man named Marbury as a justice of
the peace and the commission was sign
ed by Chief Justice Marshall. The ap-
pointment was made late at night and
left on the desk. When jefferson came
into office next day he ordered his sec
retary to hold up the appointment.
Marbury appealed to the courts and the
court, Marshall writing the opinion.
held that Marbury's appointment was
complete; and as the law gave him the
right to hold for five years. independent
of the executive, his appointment was
not revocable: ITO withhold his com
mission, therefore, is an act deemed by
the court not warranted by law, but
violatiye of u legal vested right"
Touching this case. Henry Adams in
his History of the United States, says:
The decision in Marbury's case natur-
ally eXasperated Jefferson; but the chief
justice knew the point beyond which he
could not go in asserting the jurisdic-
ton of his court, and was content to
leave the matter as it stood. Marbury
never applied for the mandamus i'm the
court below The opinion in the case
Of Maroury and Madison was allowed
10 sleep. and its language was too
guarded TO furnish excuse for impeach-
ment. :"
Also the gentleman from Martin
(Stubbs) claims that the court was JUS
titled in its action by Gotten VS.. Ellis,
(52 N. c.. 545). That likewise is an un-
tenable position.
This Ellis case was a petition for an
alternative mandamus. The petitioner
had been appointed Adjutant General of
North Carolina under Gov. Bragg with
a salary attached. Subsequently the
law was changed and another gentleman
was appointed 10 the position of Adju-
tant General. The man who lost his
office brought action to compel the Gov
ernor to issue a warrant upon the
! Treasurer for his salary. The court
| held the subsequent act void and the
| petitioner entitled to his salary but at
/ the end of the decision the very ques-
| ton with which we are now dealing
to-wit, how to get the money out of the
| Treasury was presented and the court
said
we Go not enter Upon the inquiry
as to how the writ will be enforced. be-
cause we are not allowed to suppose
sured that the sole purpose of the Gov
ernor is 10 obtain judicial construc-
lion of the statute in question.
Another case that has been referred
| TO here is Shaffer US. Jenkins az y. c..
275. In the Shaffer case authority was
given for the construction of a turn
pike and the appointment OF a superin-
tendent and $4,000 was specifically ap-
propriated from which 10 pay him on
warrant cf the Governor. The Cover
nor issued the warrants and they were
sold for value. The holder of them APP
piled to the Treasurer for payment. but
was refused on the ground that there
was no money in hand with which to
pay. Subsequently THE GENERAL
ASSEMBLY BY A RESOLUTION d.
RECTED THE TREASURER NOT TO
PAY THE WARRANTS. An action for
mandamus was brought and the Su-
preme court decided that the plaintiff
was entitled to his money. that the
Legislature could not impair the obli-
CATION of the contract by resolution or
act but that the sole control of the
money in the treasury was in the Gen
eral Assembly and no money could be
taken out of, not only against its con-
sent. but without its express permis-
sion. / submit that this case presents
exactly the question which was pre-
sented to the court when Whites at
torney applied for the mandamus in
October.
"The court was-or should have been
adyertent to all these decisions that l
have read, and they cannot now come
here and plead ignorance"
The doctrine Of mandamus was never
more accurately stated than by this same
court in the case Of Garner VS.. Worth.
| 122 \. Co. 1t was suit brought by the
State to declare certain oyster grants
void The State lost the salt and was
taxed with the COSTS. Mandamus was
asked TO comnel the payment CT these
costs las the Legislature had ordered the
suits brought and provided for payment
| of the costs in the Revenue Act What
did the court say about issuing q man
| damus. Listen:
/ These judges now on trial--the ones
| that issued the mandamus for White. said
this. They must have been advertent to
their own decisions. But they had been
going down. down and one more step or
less seemed to make little difference. so
White got his salary"