The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1901-02-22

Jurisdiction of his court, and was con-
tent to cave the matter as ii stood
Marbury never applied for the manda-
mus in the court below. The opinion
i'm the case of Marbury and Madison
Twas allowed to sleep, and its language
was too guarded to furnish excuse for
Impeachment.
Wonder what would have happened
If he had issued the writ? / know, and
/ hin you do
ALSO the gentlemen from Martin
I(Stubbs) claims that the court was JUS
titled in it's action by Gotten VS.. Ellis,
Ll52 n. c., 545). That likewise is an un-
Itenable position.
This Ellis case was a petition for an
alternative mandamus. The petitioner
had been appointed adjutant general OF
North Carolina under Governor Bragg
with a salary attached. Subsequently
the law was changed and another gen.
ltleman was appointed to the position
of adjutant general. The man who lost
his office brought action to compel the
governor to issue a warrant upon the
treasurer for his salary. The court
held the subsequent act void r. the
petitioner entitled to his salary, but at
the end of the decision the very ques-
ltion with which We are now dealing,
lto-wit, how to get the money out of the
Treasury, was presented and the court
said:
1--WE CT not enter upon the inquiry
as to how the writ will be enforced, be-
cause we are not allowed to suppose
that the question will arise, feeling as
sured that the sole purpose of the gov
Iernor is to obtain a judicial construc-
ltiOn OF the statute in question
The judges might have rendered
these decisions as much as they pleased
but when they put their unhallowed
hands into the treasury they did so in
hold xinInrfnn Of Tho nnnofifrrtinn Tho
Question of h was entitled to the
loffice was one Of opinion OF the law,
but how to get the was
the crucial question. and on it the pres
lent supreme court has gone to wreck.
Let me say also in passing that in
these decisions complained of, the leg
lislature vas most 1ippantly referred
ito. it's. motives questioned, the number
Iof lawyers counted and much other
Ito the same effect. But we could have
stood that, had the constitution not
been violated.
Another case that has been referred
Ito here is Shaffer rs. Jenkins az n. c.,
l275). In the Shaffer case authority was
lgiven for the construction of a turn
pike and the appointment of a super
~lintendent and s., 900 vas specifically
appropriated from which to pay him
ION warrant of the governor. The gov
Iernor issued the warrants and they
|" L SOlo 1oI luz. lDt hOIuSI VI
them applied to the treasurer for pay
Iment, but was refused on he ground
THAT there was nc none in hand with
(which to pay. Subsequently the general
ASSEMBLY by a resolution directed the
treasurer not to pay the warrants. An
faction for mandarin was brought and
the supreme court decided that the
plaintiff was entitled to his money, that
the legislature could not impair the
obligation of the contract by resolution
Tor act, but that the sole control of the
money in the treasury was in the gen.
leral assembly and no money could be
taken out of, not only against it's con-
tsent, but without it's express permis-
sion. 1 submit that this case pre-
Isents exactly the question which was
presented to the court when Whites
attorney applied for the mandamus in
October.
1.-The court was-or should have been
Eadvertent to all these decisions that
l have read, n 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
Tvs. Worth, Q22 N. c. 1t was a suit
brought by the state to declare certain
loyster grants void. The state lost the
lSuit and was taxed with the costs.
lMandamuS was asked to compel the
payment of these costs, as the legisla-
lture a Orederd the suits brought and
provided for payment of the costs in
1.-THE revenue act. What did the court
a about issuing a mandamuS. Lis
ten:
1.-The courts cannot direct the state
treasurer to a a claim against the
state. however just and unquestioned
when there is no legislative appropria-
itlon to pay the same; and when there
is an appropriation the coercive power
is applied not to compel the payment
of the state liability but to compel d
public servant to discharge his duty
by obedience to a legislative enact
nlent.'
These judges now on trial-the ones
that issued the mandamus for White,
said this. They must have been adver-
tent 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 sarary.''
The speaker told of the act passed
by the last legislature to prevent the
payment of money Later Gin June) OF
the inquiry made of the treasurer as
Ito whether the money had been paid.
HE added:
81 pause here to say that the manda.
mus would never have issued if the
court had not known in advance tina!
the claim would be paid; nor would ii
IhdNS OSSH pdlu IL treasurer WOTlQ :
term had not expired Just as this legis-
llature came into existence, and he
Thought this rendered him scathless.'
Touching Mr.. Stubs attack on the
ELECTION law. Mr.. Rountree declared he
had always considered it IAN excellent
!, law" and "the only mistake the demo
Gratis lave ever made about it is stopp-
ing to defend it." He continued:
The gentleman from Martin says the
lR0urt knew this legislature wOul6 H.
!. democratic and woul not therefore
pay this claim. hence it ordered it paid
If that's so they are as guilty &:
!, amy criminal that now inhabitS the
, I~penitentiary. Ever apology for then
lis without excuse"
, The speaker, now traced the circum'
: stances attending the issuance of thu
= lmandamuS. He added:
/ Whites attorney asked the manda
mus. He was asked if he had given no
: ltice to the other side. Then there ap,
t~1a~l - H. 49, -,Io