The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-03-23

thority to issue it from the judgment of
Starbuck, because if that were so the
writ would have been issued from the
court of Wake county. The only author
ity they can have is from the face of this
Judgment in White VS., Auditor, and it
was on this it was issued
When You come down to the cold, hard
facts you can't get around it--these Re-
spondents have issued this great writ
without authority and in the very teeth
Of the law"
He declared that the whole case "sim-
ply reeks with Irregularities" He asked
the other side to examine the decision and
the judgment and find anything ito au-
thorize the Auditor to pay this claim
ant at his own sweet WILL
Here Mr.. Busbee read a long list of
North Carolina authorities in. regard to
when and how a mandamus may be is
sued One of these was Burton VS. Fur
man, Us N. c., which holds that mo
emandamus will lie to compel the Treas
urer to pay, except upon his refusal to
honor the warrant"
"The court had no right to say that
the Treasurer must say such claims as
the Auditor might say are due. The law
of mandamus in North Carolina says a
peremptory mandamus only lies for a
specific and definite amount of money
On this point Bank VS.. Harris, Sd n.
c., 210, and McLendon VS.. Commissioners,
II n. c., SO, were read; also Bailey VS..
Caldwell. GO N. c., 472, in which it is
held that no mandamus ever lies against
an officer of the State unless it is to
do special act which the Legislature
has ordered him to do No mandamus
has ever issued against the Treasurer
except to make him obey the declared
will OF the Legislature"
Nov, enators l come to the ques-
tion of intent
"A mans intent is judged by his acts.
The intent is necessary ingredient of
the act. No man can be heard to plead
that he did not intend to do that which
he has deliberately done.
A number of authorities on the ques-
tion of intenet were read. Among them
were State VS. Hatch, 116 N. c.. 1,003
and State VS.. Mclean, 121 N. c., 594. In
the last named case the two impeached
judges were on the bench, and Judge
Montgomery wrote the opinion, holding
that it is "only necessary to show that
they intended to do that thing which
they did
81 can't say when l violate the law
that / didn't intend to dc the act. So if
you shall find that these Respondents or
dered the clerk to issue the writ or adj
vised him to issue it. and that writ vio
lated the law, then they can't be heard
to say they didn't intend to violate the
law. No living man can escape that
logic.
Again in State VS.. McBrayer, 9S N.
c.. 619, we find this language: When
the act is forbidden by statute the doing
CT the act implies the guilty intent. :
Mr. Busbee argued that it was i'm
possible for the Respondents to examine
into the question of issuing the mandamus
without refu~ing to issue it.
'They couldn't have considered it and
have issued it. And why didn't they is
sue it? Because they had determined to
issue it at all cost.
Touching the refusal of the court TO
allow Judge Clark to fill his dissent, Mr..
Busbee said:
No more could they allow that. They
knew they were doing wrong, and they
didn't want it to be put on record. The
act of the court is what gives it's o~t2-
ions vitality What the court does is
much more important than what the judge
thinks.
again they refused to consider the
Legislatures resolution of inquiry and
that again shows their intent.
Judge Douglas, it is in evidence, told
Mr. Harris out of court that he'd get
his money. What business had judge
telling an attorney he'd get his money
before the writ is issued?
These things show the ear marks of
actual intent. Did they issue the man
damus? They don't deny it now and this
morning out of the mouth of counsel
they assumed responsibility for it.
at isn't these defendants alone that
are upon trial The organic law of the
land is upon trial. The Constitution OF
the State is upon trial. Are you gong
TO say that it can be disregarded by the
highest court we have.
Are YOU going to allow this new prin-
chile incorporated in our fundamental
principles of government? Have you
thought where it leads. There have been
Legislatures that would have paid So
0co 600 of worthless bonds; there have
been Judges that would have paid them
When once YOU open the flood gates You
know not where the tide will bear you
When a great principle has been departed
from or a new principle announced, the
time to test it is then.
Let this court of impeachment say:
Now and forever. here and always this
Constitution shall be preserved unbro-
ken as the law of the land.
Mr. Busbee closed his speech exactly
at O'Clock, having spoken three hours,
and the court adjourned till 10 O'Clock this
morning.