The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-03-16

The next witness sworn was E. v Per-
ry, clerk OF the Superior court of Per-
quimans county. He was examined by
Major Guthrie in regard to the courts in
his county and when they were held He
said the March term, 1899, was held by
Judge Starbuck
A bundle of papers was submitted to the
witness to identify. He said these were
the case of White VS.. Auditor submitted
without controversy, the judgment and
the decision Of the Supreme court in
the case rendered at the February term,
1900. Also there was a letter from ]. c.
L. Harris to the witness in regard to the
case, dated February 9Th, 1900.
When did you receive those papers ?"
''On December 9Th. They are the orig-
nal papers OF my office relating to the
case"
Counsel for the judges objected to furth-
er evidence along this line, On the ground
that the judges were not responsible for
what occurred in Perquimans county or
for papers that they had never seen or
had anything to do with.
Major Guthrie Our contention is that
it is a violation of the law to submit
case agreed in mandamus proceedings.
1t was a case in which neither the lower
court or the appellate could had jurs-
diction. Our contention is that it is like
where a man is put on notice. He is
presumed in law to know everything that
an inquiry would disclose.
Major Guthrie read the Code provisions
in regard to mandamus and argued at
length that the proceeding in the White
case was a plain violation Of them. He
added:
THE complaint was never verified by
anybody and it is expressly stated in the
law that it shall be: and so when the
case came before the Supreme court the
judges were put upon notice that this
statute had not been complied with. There
was no summons, no complaint"
Major Guthrie then recounted the par
ticulars in which he considered the pro-
ceeding irregular and added
with your honor's permission I will
read the original paper. We want to
bring out all these irregularities"
To this a howl Of objection went up
from the other side and Mr., T.. H. Bus
bee with an air of supreme self-satisfac-
tion read the case of Bank VS. Worth
in which he said Major Guthrie, present
ing an exactly opposite view, had won
out Mr. Busbee was both merry and
sarcastic over the discovery. He con-
cluded:
IF this case is to be begun and fought
this way, if the law is to be trampled
upon this way, it seems to me either we
or our friends have mistaken the tribunal
before which we have come"
Major Guthrie, by way of reply to- Mr..
Busbee, said:
at is the court that is responsible for
the decision and not the counsel who
argued the case. 1t has never been my
good fortune to hold a judicial office,
but if | ever do l shall not. even in i'm
parchment proceedings, try to dodge be-
hind the counsel that argued the case. In
the Bank VS.. Worth l was trying to hold
the door Of the Treasury shut, not prize
it open. 1t was a case arising out OF the
HCola- Boom investigation of the AIRING
ton case, and if | won my case | don't
thing | ought to be censured for it. The
court is responsible and don't think they
ought to try to make me a scapegoat to
bear their sins. And, Mr. President, be-
fore this court adjourns we will see
whether these judges can dodge behind
the shadow of Russell"
Major Guthrie now pointed out the diff
ferenccs that he thought existed between
the Bank case and the White case.
Senator Henderson: Il would like to
inquire whether or not the complaint in
Bank VS.. Worth was vcrifed?'
Mr. Chas. M. Busbee: 1T does not APP
pear in the printed report whether it
was or not, but we presume it was"
Continuing, Mr.. Busbee discussed the
nature of a mandamus proceeding.
Judge Bynum: Our objection is
that the evidence sought is irrele-
want, incompetent and these defcndants
cannot be held responsible for anything
that does not appear in the record"
The chair held this view of the case
and this witness was stood aside. Major
Guthrie, however, later recalled him and
asked:
after the Supreme court decision was
certified down to you did you issue any
writ of mandamus?"
No"
WAS any such writ applied FORE"
mo"
The witness was now finally dismissed
and the original record from Perquimans
Superior court was again offered in evil
dence.
Counsel for defense again objected, on
the ground that the judges had never seen
it and could in nowise be prejudiced by
it.
Mr.. Chas M. Busbee: eve offer these
papers to show that the record in the
court below was not complete and that
the Supreme court didn't follow lthN
rules of procedure for mandamus. 1t
doesn't show an order from the Supreme
court to the court below for the issuance
of a mandamuS."
Judge Allen, Chairman of the Board of
Managers: ct seems to me that there
is one paper that we are clearly en-
titled to, that is the judgment from the
Supreme court to the court below. Then
we are entitled to the other papers as
constituting the entire record of the
court"
The President: I'm Of the opinion that
the transcript of the record from Per-
quimans court to the Supreme court con-
stitutes complete record"
The opinion certified down from the Su-
preme court to the clerk of the court in
| Perquimans was also admitted, however,
| there being no objection from the de-
| Tense.
| Col Thomas S. Kenan, clerk of th< Su-
| preme court was now sworn. He was
| examined by Major Guthrie
The witness was asked to turn to his
| record, which he had with him, and read